One of retired Justice Anthony Kennedy’s final acts as a sitting justice was to stare partisan gerrymandering directly in the eye and cry out a resounding “meh.” A pair of cases argued last term were supposed to deliver sharp blows to such gerrymandering. Instead, the Court punted, Kennedy retired, and there is no longer a plausible way to form a majority that could halt this anti-democratic practice.
Yet, even as the Supreme Court refuses to enforce the Constitution, two of the most gerrymandered states dealt severe blows to partisan election rigging this year, and a third is likely to follow suit this November.
So gerrymandering is not dead, and there is a very real risk that the Supreme Court will invigorate it if Judge Brett Kavanaugh is confirmed to replace Justice Kennedy. For the moment, however, the GOP’s death grip on U.S. House redistricting is starting to crumble.
How we got here
Every ten years, the states must redraw their legislative districts to comport with the most recent census. As a result, if one party dominates the election immediately proceeding a redistricting, that victory can have consequences that extend for years or even decades. The party that dominates in an redistricting year can draw maps that lock it into power for the next ten years — and is more likely than not to over-perform in the next election immediately proceeding a redistricting cycle.
Which brings us to 2010, a Republican wave election year that allowed the GOP to draw rigidly gerrymandered maps in multiple swing states. Indeed, in 2012, the first election with the GOP’s new gerrymandered maps, Republicans won lopsided majorities in six key states’ congressional delegations, even though President Obama won the popular vote in each of these states — in some instances, not by close margins.
In 2012, Democratic House candidates narrowly won the national popular vote over their Republican counterparts, but Republicans entered the 113th Congress with a solid majority. Democrats began 2013 with just 200 House seats. If the six states depicted above had drawn fair maps, Democrats would, in all likelihood, have won 17 of the 18 additional seats they needed to win a majority.
With such a majority, Democrats could have stimulated the economy, expanded Obamacare, and avoided a government shutdown. Arguably, had Hillary Clinton campaigned during the stronger economy such stimulus would have provided, she would be president right now, and Justice Merrick Garland would have been on hand to provide the necessary fifth vote to declare partisan gerrymandering unconstitutional.
The wall starts to crumble
Though the Supreme Court of the United States is content to let Republican lawmakers rig congressional elections, the Pennsylvania Supreme Court was not. Last January, the state supreme court held that the state’s existing maps violate the state constitution and ordered new maps drawn for the 2018 election.
The new maps still favor the GOP — they include “four swing districts, eight that favor Republicans, and six that favor Democrats” — but that’s still a substantial improvement for Democrats over the previous maps, which made Republicans the strong favorite in 13 districts.
Then, in May, Ohio voters overwhelmingly approved a ballot measure that would make it harder for either party to recreate the kind of gerrymander Republicans enacted in 2010. The initiative creates a Rube Goldberg-like method of drawing Congressional districts that will be in effect in the 2021 redistricting cycle.
Ohio’s solution is not perfect, and it is difficult to summarize concisely (if you want to learn the details, you can read about them here), but it uses a combination of supermajority requirements, requirements that new maps be approved by some members of the minority party, and a fail safe that causes maps drawn by the majority party to expire in four years if the two parties cannot reach a consensus. At the very least, it will seriously complicate Republican efforts to keep in place maps like the ones Ohio has now.
Then, on Tuesday, the Michigan Supreme Court voted 4-3 to reject a lawsuit seeking to remove a ballot initiative targeting gerrymandering in that state. The court’s decision was mildly surprising because Republicans enjoy a 5-2 majority on the state supreme court, and the court has long been a bastion of ideological conservatism.
Chief Justice Stephen Markman, who dissented from the court’s decision, once said that he is “committed to the judicial values that are often identified with the Federalist Society”
As a result, Michigan voters will decide in November on a ballot initiative which would transfer power to draw legislative districts to an independent commission whose members “will be randomly selected from a pool of registered voters, and consist of four members who self-identify with each of the two major political parties, and five non-affiliated, independent members.” If the lopsided vote on Ohio’s ballot initiative is any sign, Michigan’s initiative is likely to pass.
The Roberts threat
So that’s the good news for supporters of free and fair elections. Three of the most gerrymandered states in the country will likely have permanent safeguards against gerrymandering during the next redistricting cycle. The bad news is that these safeguards may not survive the single greatest threat to voting rights in the United States of America — the Supreme Court of the United States.
In 2015, the Supreme Court decided Arizona State Legislature v. Arizona Independent Redistricting Commission, a challenge to that state’s use of an independent redistrict commission to draw its congressional maps. The premise of this lawsuit was that the Constitution provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof,” and Republicans argued that the word “legislature” can only be read to mean the body of lawmakers elected to make laws — not an independent commission created by a ballot initiative.
But this legal theory ran headlong into precedent. Among other things, the Supreme Court established in its 1916 decision in Ohio ex. rel. Davis v. Hildebrant that the word “legislature” can apply to any body that is empowered to make laws. Thus, a referendum “constituted a part of the state constitution and laws,” and was accordingly “contained within the legislative power.”
Although five justices upheld Arizona’s redistricting commission in the 2015 case, one of them was Justice Kennedy. So if Trump succeeds in picking Kennedy’s replacement, there will no longer be a majority for the proposition that ballot initiatives may target gerrymandering. The Ohio and Michigan initiatives could fall to a Supreme Court hostile to voting rights.
Indeed, after Pennsylvania’s Supreme Court struck down that state’s gerrymander, Republicans argued that a court could not do so — because a court is not a legislature. The Supreme Court of the United States treated this argument pretty dismissively, but — again — that was while Kennedy was still around. With him gone, the Republican Supreme Court may view a case that could eliminate Republicans’ power to rig congressional elections differently.