The Supreme Court Won’t Stop Partisan Gerrymandering. Now What?

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was published here and on the website for the Brennan Center for Justice.

Since Thursday, Chief Justice John Roberts has been winning praise for independence and fair-mindedness after blocking — at least for now — the Trump administration’s bid to rig the census by adding a question on citizenship. But let’s be clear: by giving a green light to partisan gerrymandering in an opinion released the same day, Roberts and the rest of the court’s conservative bloc dealt a body blow to American democracy.

The chief’s opinion in Rucho v. Common Cause doesn’t withstand even basic scrutiny. The court’s majority decided that partisan gerrymandering disputes are “non-justiciable” — that is, the courts can’t intervene in them — because, essentially, courts aren’t equipped to come up with a standard to determine when gerrymanders go too far. Never mind that the lack of what the court calls a “judicially manageable standard” appears to have literally never held the justices back before on any other issue. Never mind also that, as the Brennan Center’s Tom Wolf has pointed out, five different federal courts, relying on the work of respected political scientists, have had little trouble coming up with manageable standards to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland. To Roberts, it’s all a bunch of “sociological gobbledygook.”

It’s hard not to see Rucho as a direct relative of past Roberts court rulings that likewise crippled our democracy, like the Shelby County decision gutting the Voting Rights Act, the Citizens United decision striking down campaign finance rules, the Crawford case upholding voter ID laws,  and the Husted opinion allowing purges of voter rolls.

The specific legal rationales vary from case to case — in Shelby County, it involved Roberts more or less inventing the “equal sovereignty of the states” doctrine in order to neuter the most important plank of the Voting Rights Act. But the underlying worldview is consistent: the court’s conservatives simply don’t believe that political equality — the idea that Americans must be able to participate in the political process on a more or less equal footing — is a crucial value to be upheld. Put simply, they don’t see fair elections, or democracy itself, as all that important.

Still, raging against the court’s cynicism may be cathartic, but it won’t get us far. With the next round of redistricting just two years away — and the gerrymanderers likely to be even more emboldened — we need to start thinking about alternative strategies for ensuring we get maps that fairly reflect voters’ views.

The good news is, there’s already plenty of action here — and the court’s decision Thursday will only give these efforts even more momentum.

State-level reforms that reduce the role of partisan lawmakers in the redistricting process, often by creating an independent commission, have emerged in recent years as the most promising immediate solution to the gerrymandering crisis. In 2018, voters in Michigan, Colorado, Ohio, Missouri, and Utah approved ballot measures along these lines, and this year, New Hampshire and Virginia have followed suit through legislation.

Still, this may not work everywhere. Lawmakers in places like Wisconsin and North Carolina, who have already entrenched themselves through gerrymandering, are unlikely to pass legislation to fix the problem. As for using ballot measures to do it, not every state makes them easy to achieve.

And this approach, too, could be at risk thanks to the Roberts court. In 2015, the court heard a Republican challenge to Arizona’s voter-created panel for drawing congressional districts on the grounds that it unconstitutionally cut lawmakers out of the process. By 5-4, the court upheld the system, with Justice Anthony Kennedy siding with the liberals, while Roberts, the court’s new swing vote, would have scrapped it. Now that Kennedy has been replaced by Justice Brett Kavanaugh, there’s no knowing how a potential future challenge might shake out.

That means challenges in state courts, based on state constitutions — an avenue that Roberts noted in his opinion remains open — will be part of the answer. Pennsylvania’s Supreme Court last year struck down the state’s gerrymander and appointed an independent expert to draw new maps. Expect similar challenges in other states, as well as moves to amend state constitutions to include explicit anti-gerrymandering protections.

Again, though, that’s by necessity a piecemeal approach.

The real fix is congressional legislation that bans gerrymandering nationwide. In fact, the House already passed legislation to do that this year when it approved H.R.1, the sweeping democracy reform bill that, in addition to expanding voting access and fixing our campaign finance system, would make redistricting fair and transparent. H.R. 1 is a non-starter with the Republican-controlled Senate and President Trump. But Thursday’s ruling, by making clear the need for a national solution, should make H.R.1 the first order of business in 2021 if we get pro-democracy majorities in both houses of Congress and the White House.

Finally, Rucho is bolstering the case for an even more innovative reform: ranked-choice voting, with multi-winner districts. You can read up on how it works here, but its proponents say getting rid of winner-take-all elections entirely is the only sure way to fix gerrymandering — and solve a host of other voting problems, too.

Of course, none of this will happen unless the inspiring popular movement for fair elections continues to strengthen. That’s why, if nothing else, Thursday’s ruling was clarifying: now we know the courts won’t save us from those looking to manipulate our elections for political gain. We’re going to have to do it ourselves.

Zachary Roth is a fellow at the Brennan Center, a former national reporter at MSNBC and the author of The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy (Crown), which was the runner-up for the 2017 J. Anthony Lukas Prize awarded by Columbia Journalism School and the Harvard Neiman Foundation. He has written for the The New York Times, The Los Angeles Times, The Atlantic, The New Republic, Slate, Salon, and other outlets.