Partisanship In the Guise of Neutrality
By 
I am up at the Prospect with a piece about today’s two big cases. Let’s start with the egregious gerrymandering abdication:
In an unsurprising but nonetheless appalling opinion in Rucho v. Common Cause, a bare majority of the Court held that even the most extreme partisan gerrymanders present a “political question” that the federal courts cannot resolve. The case involved a particularly extreme Republican gerrymander in North Carolina and a less egregious but still substantial Democratic gerrymander in Maryland. In North Carolina, in 2012 the partisan gerrymander allowed Republicans to get 9 of 13 House seats with 49 percent of the vote, and in 2014 they got 10 out of 13 seats with 55 percent of the vote. The gerrymander, in short, grossly underrepresents the support Democrats have in the state, which not only harms the rights of disenfranchised North Carolinians but distorts the representativeness of the House of Representatives as a whole. And in Maryland, Democrats have been able to parlay 65 percent or less of the statewide vote into 7 out of 8 seats by gerrymandering a traditionally Republican district out of existence.
And yet the Court’s five Republican nominees, speaking through Chief Justice Roberts, held that even the most extreme partisan gerrymander was not a matter the federal courts could resolve. According to the majority, there are not adequate standards to allow the federal courts to determine whether a partisan gerrymander goes “too far.” Throwing up his hands, Roberts concedes that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” but nonetheless concludes that “the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” Victims of gerrymandering will have to appeal to state or federal legislatures, state courts, or (where available) to the initiative or referendum process.
Justice Kagan’s dissent, joined by the Court’s four Democratic nominees, ruthlessly demolishes the majority’s shameful abdication of the appropriate role of the federal courts. “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights,” Kagan observes. “And checking them is not beyond the courts.” Indeed, as the briefs filed by scholars in the case make clear, the very social science that allows for ruthlessly effective gerrymanders also gives the courts the tools to apply standards that allow for fair elections. This conclusion is not merely theoretical, but is evident in the actions of state courts such as Pennsylvania’s. As Kagan points out, “[t]he majority’s abdication comes just when courts across the country … have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.”
The federal courts are no less competent to handle gerrymandering claims than state courts. Of course, only state courts without Republican majorities installed by gerrymandered legislatures and chief executives can be expected to look favorably on these claims. A situation in which blue states hold fair elections and red states don’t is less than optimal, especially for the House.
Particularly specious is Roberts’s claim that disenfranchised voters can appeal to their state or federal legislators. The whole problem with gerrymandering is that voters are effectively locked out of the representative process! Roberts disingenuously cites numerous bills proposed in Congress that could theoretically address the problem, but as Kagan acidly responds, “what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.” The circular reasoning that disenfranchised voters have to appeal to gerrymandered legislatures for adequate representation is ridiculous. It’s hard to think of a case where judicial review is more appropriate.
It is also worth noting that the majority’s pretense of political neutrality is a sham. While the Court shrewdly chose one Republican and one Democratic gerrymander to make it look as if both sides were being disenfranchised equally, it doesn’t in fact balance out. It is easier for the more rural and exurban party to engineer extreme gerrymanders, so the Court’s abdication will overwhelmingly favor the party of all five members of the majority.
As Kagan points out, to claim that courts have no standard to which resolve these cases is to deny that courts can do things that courts are already doing at the state level. Only without a federal standard the result is that states who suppress the vote most effectively will be rewarded with the most federal representation. Which of course is the point of Roberts’s opinion.