The Good, The Bad, And The Ugly Of The Supreme Court Decision On Gerrymandering

After years of punting the issue to lower courts, the Supreme Court finally ruled on the constitutionality of partisan gerrymandering. In Rucho v. Common Cause the majority justices concluded in their decision, written by Chief Justice John Roberts, that partisan gerrymandering was a question beyond the scope of the Supreme Court. Essentially, what Roberts argued is that the court could not make a determination of a clear standard for when a legislative district map should be considered gerrymandered on a partisan basis. They rejected the argument of the plaintiffs that there could be standards along with the standards they presented. Instead, the court said there was not a clear standard of saying when a map was “gerrymandered”–although the court has previously determined such a standard for racial gerrymandering.

While many decried this decision as a green light for extreme partisan gerrymandering in the upcoming 2021 cycle of redistricting, there is somewhat of a silver lining for opponents of gerrymandering. The court specified that while there is no federal standard for ruling a legislative district map unconstitutional, state courts and state law can still form a standard for gerrymandering. Moreover, they ruled that states can still implement independent redistricting commissions as reforms to gerrymandering–a step that many states took during the 2018 elections, Missouri included (although Missouri’s reform only applied to state legislative districts, not congressional districts.)

State governments working to curb partisan gerrymandering is more common than expected and actually took place on a significant level in 2018. The Pennsylvania state Supreme Court ruled in the January 2018 case League of Women Voters v. Pennsylvania General Assembly that the state’s congressional district map violated the state constitution. The court claimed that the map was so egregious that it diluted the voting power of some voters, violating a clause of the Pennsylvania state constitution that requires elections to be equal and fair. This ruling resulted in the state Supreme Court drawing a new congressional district map that resulted in a Pennsylvania congressional delegation of nine Democrats and nine Republicans, instead of the previous five Democrats and thirteen Republicans.

There are several other states that have similar language in their state constitutions and/or state laws, which could still provide a solution for partisan gerrymandering in those states now that the federal government has insisted it cannot act on the issue.

That does not mean, however, that state governments will be the end of partisan gerrymandering nationwide. Not every state has this kind of language and even for those that do, the court system tends to move slowly, allowing for elections to pass with these gerrymandered districts in place. In Virginia, for example, a case concerning the districts in their House of Delegates took almost seven years to move through the court system before only recently having a finalized decision, which resulted in some districts being redrawn. It is also important to note that the Virginia case related to racial gerrymandering, not partisan gerrymander. Partisan gerrymandering cases could take even longer in the courts.

In states without anti-gerrymandering laws, and in states with a partisan trifecta in their government (meaning one party controls both bodies of the state legislature and the governorship), the next round of redistricting could get ugly. With a free pass from the federal government and no state level remedy, partisan state legislators who get to redraw the district maps can go all out with the strength of their gerrymanders. In Kentucky, if Republicans hold the Governor’s mansion this November, the GOP can draw out Democratic Congressman John Yarmuth in Louisville, creating an all Republican congressional delegation. In Maryland, Democrats could override the Governor’s veto to draw a map that has eight blue districts and zero GOP seats. In Illinois, Democrats could draw maps that maximize the power of Democrats in Chicago and in liberal downstate cities like Peoria, Bloomington, Champaign, and Belleville. And right here in Missouri, the GOP could ‘crack’ Kansas City into two Republican seats while ‘packing’ all the Democrats in St. Louis City and County into one district, resulting in seven safely Republican seats and only one Democratic seat, instead of the six-two split Missouri currently has.

The Supreme Court’s decision in Rucho v. Common Cause was not ideal for opponents of gerrymandering. But it could have been much worse. It still left the door open for redistricting reform, but in the short term, it could have disastrous consequences in heavily partisan states.