Law & the Courts

Partisan Gerrymandering Isn’t Unconstitutional. But It’s Corrosive and It Should End.

Demonstrators rally in front of the Supreme court in opposition of partisan gerrymandering, in Washington, D.C., March 28, 2018. (Joshua Roberts/Reuters)
Reform is a long shot -- and the right thing to do.

The Supreme Court just issued a correct decision on partisan gerrymandering, refusing to find that the practice violates the Constitution.

The Founders gave the task of drawing congressional districts to state legislatures, and Congress the authority to override the states via federal law, knowing full well that these are political bodies. Further, there is no definitive way to measure how much gerrymandering has taken place in a given situation, and no objective way for the courts to say how much is too much. The issue is, in legal jargon, non-justiciable.

But after celebrating a victory for the Constitution’s original meaning, we can pause for a second to admit that the practice of rigging the party balance of a state’s congressional delegation is nothing to be proud of. When legislators use their power at one point in time to lock in a structural advantage until the next decade’s census — deliberately watering down the votes of some of the people they’re supposed to be representing — they abuse the process and undermine faith in the political system. And the potential for abuse has become worse with time, as sophisticated computer software has allowed gerrymanderers to craft future election results with far more precision than was once the case.

Extremely skewed districting can create a situation where, as in the North Carolina map the Supreme Court considered, a party earns about half of the votes but about three-quarters of the seats. To be sure, America has never had a “proportional representation” system in which vote and seat shares always match, and gerrymandering is not the only thing that can create a gap between the two. (So can the simple fact that some constituencies cluster more than others do geographically.) But when a yawning chasm between votes and power results from blatant gerrymandering — one of the map’s authors said it gave Republicans ten of 13 seats because he didn’t think it was possible to draw a map giving them eleven — it’s hard to blame the losers for being bitter and angry and seeing the process as illegitimate.

Again, none of this violates the Constitution. But it is bad and we should stop it. There are ideas for achieving this outcome, though implementing them will be a challenge.

The good news is that the same advances in statistics and computing that enhance gerrymandering can also be used to remove political concerns from the process. If you give a computer a state map and a set of fair rules — ideally rules based on traditional district-drawing criteria such as compactness, contiguity, and respect for the boundaries of preexisting political jurisdictions — it can draw districts all by itself. If you can get legislatures to use such a system, or at least get them to pick among a number of reasonable options, you can solve the problem.

How to do that? The simplest way would be for state legislatures to use these systems voluntarily and pass redistricting plans based on the results, happily limiting their own power and refusing to twist the political system to fit their own ends. Once you stop laughing, we can discuss some ways that are more realistic, if only modestly so.

Ballot initiatives provide one option in states that allow them, and they have already been used to rein in gerrymandering through the creation of independent redistricting commissions, however flawed those may be. But this might not be allowed for long, at least when it comes to drawing federal, as opposed to state, districts.

The problem is that the Constitution delegates congressional-election policy to the “Legislature” of each state, though Congress can alter these regulations at will. In a 2015 decision, the Supreme Court found that when state constitutions allow the people to enact constitutional amendments via ballot initiative, the initiative process is in effect part of the legislature. To back this claim, the majority noted Founding-era dictionaries that defined the word “legislature” broadly, to refer to the lawmaking process as a whole.

But the decision also had a dissent from John Roberts, speaking on behalf of a four-judge conservative minority. As Roberts pointed out, the Constitution refers repeatedly to state legislatures and generally seems to mean . . . well, the actual legislatures. If Neil Gorsuch and Brett Kavanaugh agree with these conservatives (three of whom remain on the Court), and if all five of the Court’s current conservatives are willing to overturn a recent precedent, all ballot-initiative-based efforts to override legislatures’ redistricting authority could be banned in a future case.

Those who like reading tea leaves might take some solace in Roberts’s observation today that numerous states “are restricting partisan considerations in districting through legislation,” and that “one way they are doing so is by placing power to draw electoral districts in the hands of independent commissions.” That sounds more than a little bit like an endorsement, though it’s not unheard-of for justices to emphasize how limited one ruling is and then go farther in the next, or to discuss policies using language with confusing implications. (In her dissent, Elena Kagan pointedly notes that “some Members of the majority, of course, once thought such initiatives unconstitutional.”)

At any rate, should conservative justices someday invalidate the use of independent commissions, any solutions would have to become more creative or sweeping. For example, it would probably still be kosher to impose strict limitations on the legislature — such as requiring it to use specific criteria, as many states already do, or possibly even mandating a formula — rather than outright substituting some other body for it. In his previous dissent, Roberts wrote that “there is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether.”

Alternatively, the fight could move to the federal level, as, again, Congress may alter federal-election rules by law. Most effectively — but also most unlikely, thanks to the sheer difficulty and incredibly high stakes — Congress could take redistricting out of the hands of state legislators altogether and impose a better, more objective system after a public debate about what that system should look like. Otherwise, Congress could at least give states the authority to use independent commissions or mandatory formulas, circumventing the “Legislature” problem by implementing these solutions through Congress’s own power. (One current bill in the House would require all states to use independent commissions, which are not really reliable enough to be worth that much trust.)

I’m not too optimistic about any big solutions, and again, the Supreme Court’s decision today was correct on the merits. But in the context of gerrymandering, it’s worth pointing out that not everything that’s constitutional is wise, or fair, or laudable.

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