Faculty Journal Posted on Wednesday, January 02, 2019

Will the Supreme Court Find its Way Out of the “Political Thicket” of Partisan Redistricting?

Charles Tien Professor of Political Science, Hunter College & The Graduate Center

The Supreme Court avoided what Justice Felix Frankfurter called the “political thicket” of redistricting for over 180 years until deciding in Davis v. Bandemer (1986) that it was a justiciable matter. However, since Davis, the court has not been able to resolve the question of when a partisan gerrymandered electoral district becomes unconstitutional. Will the newly seated court, amidst so many gerrymandered districts, find a way out of the political thicket?

Historically, state legislative and U.S. congressional districts are drawn every ten years after the decennial census. There is great variation in redistricting procedures across the 50 states. In 37 states, the elected state legislature and governor are tasked with the job; in other states, independent commissions or boards are appointed to draw the district lines. The variation exists because the U.S. Constitution leaves the job of holding elections, including drawing district lines, primarily to the states. One element of redistricting in which there is almost no variation, however, is the desire to draw district lines that favor one party over the other, known as partisan gerrymandering. The first instance of partisan gerrymandering occurred in 1812, when Republican governor of Massachusetts, Elbridge Gerry, signed into law legislative districts that helped his Democratic-Republican party and hurt the Federalist opposition. Federalists mocked Gerry’s drawn district with a cartoon picture of a salamander, creating the term “gerrymander,” which now refers to any legislative district drawn to benefit one group or party over another.

Both current political parties engage in gerrymandering. When votes for one party do not translate proportionately into legislative seats for that party, our democracy is harmed as votes for the party out of power will weigh less than those for the governing party, thereby, in essence, violating the equal protection clause. The two states that recently had districts challenged in the courts provide examples of harmful anti-majoritarian outcomes. In Wisconsin in 2012, the Republicans won 48.6 percent of the state-wide popular vote, but won 60 of the 99 state legislative assembly seats. This happened one year after the Republican-controlled Assembly, Senate, and the governor redrew district lines. And in Maryland in 2016, Democrats won over 60 percent of the votes for U.S. House seats, but won 88 percent of the seats (seven of eight).

Even in the presence of anti-majoritarian outcomes, the Supreme Court has yet to come up with a way to identify unconstitutional political gerrymandering. One might argue that Justice Potter Stewart’s “I know it when I see it” definition of obscenity might apply to partisan gerrymandered districts. This means that any “strange” looking district (does it look like a salamander?) is very likely a gerrymandered district. Misshapen districts have been likened by data journalist Christopher Ingraham, of The Washington Post, to a crazy quilt; blood-splatter from a crime scene; a broken-winged pterodactyl, lying prostrate across the center of the state; a praying mantis; Goofy kicking Donald Duck; and an upside down elephant. Thus, many states require legislative districts to be contiguous, compact, and respectful of political boundaries and communities of interest. The court had opportunities to settle the question of political gerrymandering when it heard cases brought forward by Democratic voters in Wisconsin and North Carolina, and Republican voters in Maryland. In Wisconsin, Democratic voters argued that the 2011 political districts had violated their First Amendment right to political association and their 14th Amendment right to equal protection. The court unanimously held in Gill v. Whitford (2018) that the plaintiffs had failed to demonstrate standing, but instead of dismissing the case, the justices remanded the case back to the District Court so that the plaintiffs could re-argue their claims. The Maryland and North Carolina cases were also sent back down to the lower courts.

In addition to Wisconsin, partisan gerrymander cases from Maryland, Michigan, Ohio, and North Carolina may reach the Supreme Court’s docket in the near future. The next round of redistricting will occur after the 2020 election cycle. With partisanship at a fever-pitch and big data on hand with sophisticated mapping technology available, the Roberts Court seems to want to step in before the states get to work on drawing partisan maps for 2022.  Now that Justice Brett Kavanaugh has replaced Hon. Anthony Kennedy, would the outcome of a political gerrymandering Court decision likely to change? Kennedy was considered the swing vote in the Roberts court. But now that Kavanaugh has joined the court, the median justice is now Chief Justice John Roberts with Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer to the left, and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas to the right.

The solution for the court to partisan gerrymandering may have appeared in the 2018 midterm elections. After Associate Justice Felix Frankfurter, who served on the Supreme Court from 1939 to 1962, warned his colleagues to stay out of the political thicket of partisan gerrymandering, he said, “The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.” Parties are more likely to gerrymander districts to their advantage when they hold a trifecta of power in a state; that is, when they control all three levers of state power—the governorship, the state senate, and the state assembly. After the 2018 midterm elections, there are now three fewer states where Republicans hold a trifecta, but Democrats increased their trifectas from eight to 14. There are also three fewer states with divided governments (16 to 13). Unless the court steps in and finds a path out of the political thicket, we are likely to see more gerrymandering ahead, only this time it is more likely that the Democrats will benefit. Justice Kavanaugh’s characterization of modern-day politics at his confirmation hearing may be an apt description of partisan gerrymandering: “And as we all know, in the United States political system of the early 2000s, what goes around comes around.”

Charles Tien is Professor of Political Science at Hunter College and the Graduate Center, CUNY. He has served as department chair at Hunter College, and was selected to be a Fulbright Scholar in American Politics at Renmin University in Beijing, China. He has taught classes on American politics, women and minorities in politics, voting and elections, American foreign policy, research methods, and polling. He has published over 30 scholarly articles, most recently in Presidential Studies Quarterly, and International Journal of Forecasting. He received his BA from the University of Michigan, and his PhD. from the University of Iowa.