By Adam Liptak
June 27, 2019
WASHINGTON — The Supreme Court on Thursday ruled that federal courts are powerless to hear challenges to partisan gerrymandering, the practice in which the party that controls the state legislature draws voting maps to help elect its candidates.
The vote was 5 to 4, with the court’s more conservative members in the majority. In a momentous decision, the court closed the door on such claims.
The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.
[Here’s what you need to know about gerrymandering.]
Partisan gerrymandering is almost as old as the nation, and both parties have used it. But in recent years, as Republicans captured state legislatures around the country, they have been the primary beneficiaries. Aided by sophisticated software, they have drawn oddly shaped voting districts to favor their party’s candidates. Should Democrats capture state legislatures in the next election, the ruling would allow them to employ the same tactics.
In an impassioned dissent delivered from the bench, Justice Elena Kagan said American democracy will suffer thanks to the court’s ruling in the two consolidated cases decided Thursday, Rucho v. Common Cause, No. 18-422, and Lamone v. Benisek, No. 18-726. .
“The practices challenged in these cases imperil our system of government,” she said. “Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
She added that she was dissenting “with deep sadness.” Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Kagan’s dissent.
Chief Justice Roberts did not say the current system of drawing districts is desirable as a matter of policy. “Excessive partisanship in districting leads to results that reasonably seem unjust,” he wrote.
“The districting plans at issue here are highly partisan, by any measure,” he wrote. “The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well.”
The answer, he wrote, is no, as courts lack the authority and competence to decide when politics has played too large a role in redistricting. “There are no legal standards discernible in the Constitution for making such judgments,” the chief justice wrote, “let alone limited and precise standards that are clear, manageable and politically neutral.”
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,” Chief Justice Roberts wrote.
Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh joined the majority opinion.
In dissent, Justice Kagan said the court had abdicated one of its most crucial responsibilities.
“The only way to understand the majority’s opinion,” she wrote, “is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”
[The Supreme Court’s rulings on gerrymandering and the census have profound implications for American politics. Here’s what the decisions mean.]
One case decided Thursday, from North Carolina, concerned a plan drawn by Republican state lawmakers in 2016 that included a criterion called “partisan advantage.”
The state’s congressional delegation, in a purple state in which neither party had a distinct edge, was at the time made up of 10 Republicans and three Democrats. A key goal, lawmakers said, was “to maintain the current partisan makeup of North Carolina’s congressional delegation.”
“I think electing Republicans is better than electing Democrats,” explained David Lewis, a Republican member of the General Assembly’s redistricting committee. “So I drew this map to help foster what I think is better for the country.”
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats,” he said, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
The plan worked. In 2016, Republican congressional candidates won 53 percent of the statewide vote. But, as predicted, they again won in 10 of the 13 congressional districts, or 77 percent of them.
In 2018, the statewide vote was about evenly divided, but Democrats again secured only three seats.
The case was an appeal from a decision in August by a three-judge panel of a Federal District Court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates.
The other case, from Maryland, was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Representative Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.
Mr. Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Representative John Delaney, a Democrat, by a 21-point margin.
Last year, after the Supreme Court returned the case to the United States District Court in Maryland, a three-judge panel of that court ruled for the challengers, barred state officials from conducting further congressional elections using the 2011 maps and ordered them to draw new ones.
The Supreme Court addressed partisan gerrymandering last term, too, while Justice Anthony M. Kennedy was still on the court. Justice Kennedy, in his questions last term and in a 2004 concurring opinion, left the door open to the possibility that some kinds of political gamesmanship may be too extreme.
“If a state passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,’” he wrote in 2004, “we would surely conclude the Constitution had been violated.”
Last term’s cases, from Wisconsin and Maryland, ended inconclusively and seemed to invite fresh challenges, which arrived promptly. But the arrival of Justice Kavanaugh meant the challengers faced a different, more conservative court.
On Thursday, Chief Justice Roberts wrote that his majority opinion was a modest one that recognized the limits of judicial power.
“No one can accuse this court of having a crabbed view of the reach of its competence,” he wrote. “But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”