Fourteen years ago, Supreme Court Justice David Souter warned the American people that, with the advent of new technology, incumbents would be able to redistrict their states in ways that would pose great dangers to representative government. In his dissent from a decision declaring partisan gerrymandering claims beyond the court's capacity to resolve, Souter said that recent “cases now document in microscopic detail the astonishing precision with which redistricters can carve up individual precincts and distribute them between districts with confidence concerning the… partisan consequences.”
At the time, the court decided not to resolve these kinds of cases because, among other things, the Justices could not agree on a legal standard that they could use to distinguish legal from illegal gerrymandering.
On Monday, the Supreme Court decided to return two major redistricting cases back to the lower courts for further proceedings. In other words, it punted on both cases (for now). While the court’s decision has doubtless frustrated those who believe we need to find an immediate solution to gerrymandering, there is a silver lining here. The most effective solution for gerrymandering does not involve the courts, but it will also not be easy. Instead of asking the judicial or legislative branches to fix this problem, we need impartial third-party redistricting commissions not biased politicians or even judges to make the final decisions concerning where voters cast their ballots.
The most effective solution for gerrymandering does not involve the courts, but it will also not be easy.
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The first case the courts declined to resolve this week involved gerrymandering by Republicans in Wisconsin and the second involved Democrats in Maryland. Both parties used the tools described by Souter to gain unfair partisan advantage. Given that redistricting affects how members of the U.S. House of Representatives (not the Senate, where each state gets two at-large senators), and state houses are elected, nothing less than our democracy was at stake in these cases. Nevertheless, the justices are wise to stay out of this political thicket.
In 2010, the GOP gained control of the Wisconsin General Assembly. After the Republicans finished redistricting, even though 53% of the votes cast in the 2012 state elections for the general assembly went to Democrats and only 47% went to Republicans, the GOP won 60 out of 99 seats. In 2016, the GOP won the popular vote 53% to 47%, but ended up with 64 out of 99 seats. That this massive advantage for the GOP occurred despite an almost 50-50 partisan split in overall voting was no accident.
In Maryland, although the GOP won 41% of the vote for the 2014 House elections, the Democrats won 7 out of 8 congressional seats. In addition, former Maryland Governor Martin O'Malley admitted in a deposition that the intent behind the realignment of the specific district at issue in the case before the Court was to insure a Democrat would be elected.
Incumbents have been gerrymandering since at least 1812, when Elbridge Gerry, the governor of Massachusetts, carved up the state to his party's political advantage. But increased computer sophistication has changed gerrymandering from an art to a science. Although Republicans have had more opportunities than Democrats to refine the science of political exclusion because of their electoral success in the 2010 elections, it’s clear that Democrats also engage in ruthless and precise line drawing to maximize electoral advantage.
The Supreme Court has never invalidated a political gerrymander. And during the earlier oral arguments for the Wisconsin case, Chief Justice Roberts expressed great concern about the court weighing in on the issue. He worried that if the court started striking down election maps, the "man on the street" would think it is all a "bunch of baloney" and accuse the justices of making political decisions for political reasons.
Roberts had a point; it is hard to imagine what standards the court could prescribe given that I believe the Constitution says nothing on the subject. Moreover, given existing technology, incumbents will be able find a way to work around whatever mathematical formulas the court might create. The resulting litigation chaos would be expensive, chaotic, and probably in no one's best interest.
All of which is to say that leaving redistricting in the hands of people who will benefit or lose from that redistricting is not a good idea.
All of which is to say that leaving redistricting in the hands of people who will benefit or lose from that redistricting is not a good idea. Additionally, judicial overseeing of partisan redistricting will not solve this problem and could even lead to a backlash against the court. Here is where the idea of redistricting comes in. Some states, like California and Arizona already have independent redistricting commissions — usually made up of an even number of Republicans and Democrats — who then choose a tie breaking non-partisan voter. There are many ways to construct these commissions, and they may or may not be used for all district-drawing purposes.
There are preliminary indications that these commissions have reduced partisan voting in Congress, and the Supreme Court upheld their constitutionality in 2015.
Again, this is not an easy fix. Creating independent redistricting commissions would include asking GOP-controlled states to unilaterally disarm, for example. Nevertheless, the only solution in the long term is to take this issue out of the hands of politicians (and judges) and come up with a plan where district line-drawing is in the hands of people with no direct stake in the outcome. Hopefully, both sides will see that bi-partisan and independent redistricting commissions make the most sense. If we don't head in that direction soon, computer technology may well make voting for the House of Representatives and state assemblies mostly obsolete.
Eric J. Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of "Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges," and the forthcoming book "Originalism as Faith."