On June 27, 2019, the Supreme Court jointly decided Rucho v. Common Cause and Lamone v. Benisek—two pivotal cases that defined the role of the federal courts in cases of extreme partisan gerrymandering. Gerrymandering is a political technique that has been utilized for centuries by both major political parties in order to stack elections in their favor by drawing legislative boundary maps in such a way that advantage one party. This is often done by packing one party’s supporters into as few districts as possible and/or splitting up that party’s supporters into various districts so they cannot gain a majority. The Supreme Court has heard cases of gerrymandering in the past; however, those issues were tied to racial gerrymandering. These two cases were the first to explicitly question the legality of gerrymandering purely on a partisan basis.
Facts of the Case
On Jan. 9, 2018, a federal court struck down North Carolina’s 2016 congressional map, declaring it unconstitutional due to the way it had been drawn to give North Carolina Republicans a clear political advantage. Judge James A. Wynn Jr., who made the ruling, stated that the map violated the Equal Protection Clause of the 14th Amendment, as the map sought to divide North Carolina into 13 congressional districts, ten of which were predominantly Republican. This ruling was particularly contentious due to North Carolina’s historical status as a “purple” state. In 2008, North Carolina’s electoral votes went to President Barack Obama, yet in 2016, the state voted for President Donald Trump.
North Carolina Republicans, led by former state senator and head of the redistricting committee Robert Rucho, appealed this decision to the Supreme Court in October 2018. The Supreme Court, in a 5-4 decision along partisan lines, decided that the federal court’s ruling was “nonjusticiable,” because gerrymandering, partisan or otherwise, was an issue of a legislative nature, and therefore outside the reach of the federal judicial system. In the majority opinion, Chief Justice John Roberts wrote that, while excessive partisan gerrymandering does create results that “reasonably seem unjust,” it is not the job of the courts to decide questions of a political nature. Roberts further wrote that “federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution,” going on to state that the Framers of the Constitution entrusted this duty of determining redistricting to state governments, not to the federal courts.
In a dissent filed by Justice Elena Kagan, in which she was joined by Justices Ginsburg, Breyer, and Sotomayor, Kagan wrote, “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
The Supreme Court’s decision to take a step back from the growing issue of partisan gerrymandering has broad implications for the 2020 national election. Currently, most “rigged” maps are tilted in favor of the Republican party. States are redistricted every ten years after the United States Census, which most recently occurred in 2010. Republicans did very well politically in 2010, gaining control of numerous state legislatures that allowed them to control maps. Depending on how the 2020 election goes, whichever party ends up in greater control of critical “swing” states could set the tone of another decade of national policy.
In states such as North Carolina, Republicans were well poised to retain control over the state legislature in the upcoming election. Due to gerrymandering, 10 out of the 13 congressional seats in North Carolina are currently held by Republicans, even though only about 50 percent of voters in the state voted Republican in the last few election cycles. With this decision, the Supreme Court essentially allocated the onus of changing partisan gerrymandering to a gerrymandered government.
However, since the decision, there have been further developments—state courts have been weighing in on issues of partisan redistricting. On Sept. 3, 2019, a North Carolina court in Wake County, exercising their right as outlined for them in Roberts’ opinion, declared that the state’s congressional maps violated the state constitution, as they “deprive[d] North Carolina citizens of the right to vote for General Assembly members in elections that are conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” The court wrote that representatives were being chosen not by voters but by “map drawers,” and gave state officials two weeks to redraw maps in a nonpartisan way. This decision might mark a new era of state courts taking initiatives to resolve partisan battles within their districts, now that the federal courts have decided not to interfere.
Other states have been working on implementing other measures to ensure that gerrymandering becomes a fairer process. In Ohio, Michigan, Missouri, Colorado and Utah, recent ballot initiatives have been attempting to overhaul the redistricting process by taking it away from state politicians and entrusting it to independent committees. These changes were happening even before Rucho v. Common Cause made it to the Supreme Court, indicating that the country may not need the highest court in the land to involve themselves in order to create a better, more just, voting process. However, the Supreme Court’s laissez-faire approach will mean that state courts and legislatures will have to put in a lot more work before excessive partisan gerrymandering is no longer an issue. Without a uniting federal decision, there remains a large question around the fine line between constitutional and unconstitutional district manipulation.
Annika Agrawal is a first-year from Chicagoland, IL studying Neuroscience and Policy Journalism and Media Studies.