The Courts Will Not Save the Democrats on Gerrymandering

Today, the Supreme Court of the United States issued its opinion in the combined cases from Maryland and North Carolina challenging those state’s respective Congressional redistricting maps.  As has been widely reported, the Court found that challenges to partisan gerrymandering do not rise to the level of a constitutional violation and the federal courts do not have jurisdiction to hear such cases.

While we here in Maryland may be disappointed by the Court’s failure to strike down the admittedly hyperpartisan redistricting map in our state, the Court’s ruling, delivered by Chief Justice Roberts joined by the court’s other conservative justices, is a circumspect opinion punctuated by judicial restraint and originalist constitutional reasoning.

Here are some quotes from the Court’s ruling:

Partisan gerrymandering was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. They addressed the election of Representatives to Congress in the Elections Clause, Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations.

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Aware of electoral districting problems, the Framers chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.

Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?”

The Court acknowledged the ills of partisan gerrymandering but demonstrated rare restraint the temptation toward becoming a constitutional superlegislature in regulating redistricting when the Constitution provided no basis for it do them do so.

Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” We have understood that limitation to mean that federal courts can address only questions historically viewed as capable of resolution through the judicial process.”

Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national  legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing.

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve— based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. 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. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws. Vieth, 541 U. S., at 278, 279 (plurality opinion). Judicial review of partisan gerrymandering does not meet those basic requirements. Today the dissent essentially embraces the argument that the Court unanimously rejected in Gill: “this Court Cite as: 588 U. S. ____ (2019) 31 Opinion of the Court can address the problem of partisan gerrymandering
because it must.” 585 U. S., at ___ (slip op., at 12). That is not the test of our authority under the Constitution; that document instead “confines the federal courts to a properly judicial role.” Town of Chester v. Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 4).

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role. See post, at 32–33. Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.

The Court left it to the States and to Congress to implement rules for redistricting that are “fair” as the Founders of our country intended.  While we may lament the brokenness of the current system and the results that certainly are unfair, the better answer is to have the democratic institutions of government, those elected and directly accountable to the people, control the redistricting process.  As the Chief Justice so eloquently warns, the cure of judicial regulation of redistricting and the massive expansion of its constitutional role that it would require may be far worse than ills left by their deference.

It is why the approach that Governor Hogan has touted to move toward a non-partisan and independent redistrict process is the right one. The Governor, perhaps deftly anticipating today’s decision, has been stating publicly for the weeks leading up to this decision that the fight for fair redistricting will go on in the General Assembly.  Maryland Democrats who may benefit from the Court’s ruling today can no longer hide their hypocrisy in decrying gerrymandering nationally while refusing to fix it here in Maryland. Nor can Maryland Democrats continue to defy the overwhelming public desire for redistricting reform with the impunity shown by Governor O’Malley and Senate President Miller.

In her dissent, Justice Kagan, a hero of the progressive left, minced no words about the evils of the hyperpartisan gerrymandering engaged in by Maryland Democrats.

Events in Maryland make for a similarly grisly tale. For 50 years, Maryland’s 8-person congressional delegation typically consisted of 2 or 3 Republicans and 5 or 6
Democrats. After the 2000 districting, for example, the First and Sixth Districts reliably elected Republicans, and the other districts as reliably elected Democrats. See R. Cohen & J. Barnes, Almanac of American Politics 2016, p. 836 (2015). But in the 2010 districting cycle, the State’s Democratic leaders, who controlled the governorship and both houses of the General Assembly, decided to press their advantage.

 Governor Martin O’Malley, who oversaw the process, decided (in his own later words) “to create a map that was more favorable for Democrats over the next ten years.” Because flipping the First District was geographically next-to-impossible, “a decision was made to go for the Sixth.” Benisek v. Lamone, 348 F. Supp. 3d 493, 502 (Md. 2018) (quoting O’Malley; emphasis deleted).

 O’Malley appointed an advisory committee as the public face of his effort, while asking Congressman Steny Hoyer, a self-described “serial gerrymanderer,” to hire and direct a mapmaker. Id., at 502. Hoyer retained Eric Hawkins, an analyst at a political consulting firm providing services to Democrats. See id., at 502–503.

 Hawkins received only two instructions: to ensure that the new map produced 7 reliable Democratic 6 seats, and to protect all Democratic incumbents. See id., at 503.

 Using similar technologies and election data as Hofeller, Hawkins produced a map to those specifications. Although new census figures required removing only 10,000 residents from the Sixth District, Hawkins proposed a large-scale population transfer. The map moved about 360,000 voters out of the district and another 350,000 in. That swap decreased the number of registered Republicans in the district by over 66,000 and increased the number of registered Democrats by about 24,000, all to produce a safe Democratic district. See id., at 499, 501.

 After the advisory committee adopted the map on a party-line vote, State Senate President Thomas Miller briefed the General Assembly’s Democratic caucuses about the new map’s aims. Miller told his colleagues that the map would give “Democrats a real opportunity to pick up a seventh seat in the delegation” and that “[i]n the face of Republican gains in redistricting in other states[,] we have a serious obligation to create this opportunity.” Id., at 506 (internal quotation marks omitted).

 The General Assembly adopted the plan on a partyline vote. See id., at 506.

Maryland’s Democrats proved no less successful than North Carolina’s Republicans in devising a voter-proof map. In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. Yet in each of those elections, Democrats have won (you guessed it) 7 of 8 House seats—including the once-reliably-Republican Sixth District.

A grisly tale indeed and Maryland Democrats own it lock, stock and barrel.  If any Maryland Democrat laments gerrymandering but doesn’t support the approach that Governor Hogan and the vast majority of Marylanders support they are hypocrites content to engage in the worst evils that Judge Kagan and progressives virtuously demand must end. Any talk of waiting for Congress or a “national solution” is pure canard, a fig leaf to enable more bad behavior.

Together we can do better and that begins by demanding more of our elected officials. The Courts are not going to bail us out.

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