Ohio Archaeological and Historical Quarterly (1887)
By historical standards, it’s been a relatively placid term at the Supreme Court, devoid of blockbuster opinions. Most of the public’s attention has focused on the panel’s shifting ideological composition, with the addition of Brett Kavanaugh as the newest member of the tribunal, and renewed concerns about the health of Ruth Bader Ginsburg, the panel’s oldest justice.
All that could change, however, when the court decides two cases—Lamone v. Benisek and Rucho v. Common Cause—on which it heard oral arguments Tuesday. These cases deal with the constitutionality of “partisan gerrymandering”—the hotly disputed practice by which many states design voting districts to help entrench the majority political party in power.
Taken together, the bipartisan nature of the cases makes them potential game changers. The plaintiffs in Bensiek are Republican voters who are contesting a Democratic-drawn congressional map. The plaintiffs in Rucho are Common Cause and several Democratic voters who allege that North Carolina Republicans have designed their state’s congressional map to ensure GOP dominance.
Unfortunately, for those reading the tea leaves from today’s proceedings, it looks as though the court is poised to uphold the authority of lawmakers to gerrymander to their heart’s content.
For those reading the tea leaves from today’s proceedings, it looks as though the court is poised to uphold the authority of lawmakers to gerrymander to their heart’s content.
At one point in the arguments, Chief Justice John Roberts quipped dryly that it “would be the first time in history” if a voting map drawn actually was drawn in a “partisan-free” manner.
“Have we reached the moment . . . where the other actors can’t do it?” asked Justice Kavanaugh, referring to state legislatures and the independent redistricting commissions that have been established in some states.
The justices also seemed bothered by the absence of manageable objective standards, short of requiring proportional representation (which the court has never embraced), that could enable judges to determine when partisan gerrymandering becomes so extreme that it is unconstitutional.
“We need to have a number or some formula,” Justice Neil Gorsuch remarked. “Otherwise, every case is going to come to this court,” once again rejecting proportional representation as a remedy.
On the other hand, Justice Elena Kagan called it “dramatically wrong” for the court to leave this task to “professional politicians who have an interest in districting according to their own partisan interests.”
The term “gerrymandering” is a portmanteau coined after the salamander-like voting districts created by Massachusetts Governor Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party. Today, it is commonly used to refer to abusive forms of redistricting.
States with more than one Congressional district are required to redesign their voting districts every ten years in accordance with new census data. Because redistricting is so important to the functioning of democracy, it often sparks litigation.
In the 1962 landmark case of Baker v. Carr, the court reversed years of precedent that had treated redistricting and gerrymandering as political questions beyond the jurisdiction of the judiciary. Baker outlawed population-based gerrymandering, establishing the doctrine of “one man, one vote.” As clarified by subsequent decisions from the early 1960s, voting districts (whether rural or urban) must be roughly equal in population to ensure that individual voters have commensurate voices in selecting their representatives.
By the mid-1980s, the Supreme Court also proscribed “racial gerrymandering”—designing Congressional and state electoral districts to dilute the voting power of minorities. This is done by either “cracking,” spreading minority voters across a state to diminish their relative strength, or by “packing” minorities into a few concentrated districts to drain their influence in other parts of a state.
The high court, however, has never outlawed purely partisan gerrymandering—the act of purposely mapping electoral districts so as to benefit one party. Yet it has been grappling with partisan gerrymandering for decades.
In Davis v. Bandemer, a case from Indiana, the court held in 1986 that judges could review claims of partisan gerrymandering, although the court failed to find one in the Indiana case.
But in Vieth v. Jubelirer, a case from Pennsylvania decided in 2004, a plurality of four justices (one vote shy of a majority) asserted that Bandemer should be overruled. The plurality opinion, written by Justice Antonin Scalia and joined by Justice Clarence Thomas, held that partisan gerrymanders present “non-justiciable political questions” that should never be subject to judicial review.
Last year, many thought the court would finally break the stalemate in Gill v. Whitford, originating from Wisconsin, where the Republicans have grossly manipulated electoral boundaries to disenfranchise Democrats.
Last year, many observers thought the court would finally break the stalemate in Gill v. Whitford, originating from Wisconsin, where the Republicans have grossly manipulated electoral boundaries for the state legislature to effectively disenfranchise Democrats. The court, however, declined to issue a substantive decision, and wound up remanding the case to the federal district court where it was originally filed for further proceedings. The court also briefly considered Benisek last year, but decided to remand it back to district court as well.
Benisek was back before the court on Tuesday, along with Rucho, giving the justices yet another chance to decide the issue once and for all.
One thing appears certain: If the court upholds partisan gerrymandering, it will be a bad day for democracy. Partisan gerrymandering is widespread, especially in the deep South, according to the New York-based Brennan Center for Justice. Where it exists, it stifles political debate and gives rise to state legislatures and congressional delegations impervious to changes in public opinion and the diverse interests of all voters.
In a televised interview with the McClatchy News Service shortly before his retirement in June 1969, Earl Warren, the legendary liberal 14th Chief Justice of the United States Supreme Court, was asked to single out the most important case of his tenure on the bench, which began in 1953.
Warren’s answer surprised a lot of viewers. Instead of naming Brown v. Board of Education or Miranda v. Arizona or any number of other pivotal decisions that have since become household names, he cited Baker v. Carr.
How the court ultimately rules in Benisek and Rucho could determine whether Warren’s legacy will be honored and extended, or forever tarnished.