On Tuesday, the Supreme Court heard arguments in Gill v. Whitford, a landmark case that could drive a stake in many of the nation’s most aggressive partisan gerrymanders. Chief Justice John Roberts, however, wanted no part of this effort. In a candid exchange with voting rights attorney Paul Smith, the author of the Supreme Court’s opinion gutting much of the Voting Rights Act fretted that stepping in to halt partisan gerrymanders would just be seen as too political.
“We will have to decide in every case whether the Democrats win or the Republicans win,” said Roberts, who represented George W. Bush in Bush v. Gore. That will be a problem, Roberts asserted, because a mathematical formula Smith’s legal team suggested to the Court as a method of sniffing out partisan gerrymanders will not convince the public.
If you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.
And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
Roberts is, indeed, correct that the perception of partisanship can do terrible harm to the Court’s reputation. Though it is somewhat odd that he has suddenly grown fearful that the Court’s reputation might suffer if it strikes down election laws that benefit one party over the other. Here is a short list of cases where Chief Justice Roberts has voted to strike down such a law.
- Citizens United v. FEC: The Court’s Citizens United decision, which Roberts joined, permitted unlimited corporate spending on elections, so long as that money was given to ostensibly independent groups and not to candidates. Citizens United had two effects — it massively increased the amount of outside spending on elections, and it gave Republicans a significant money advantage over Democrats.
- Shelby County v. Holder: Shelby County, which Roberts authored, struck down a key provision of the Voting Rights Act of 1965, which prevents race discrimination in elections. This decision benefited the Republican Party, as voters of color overwhelmingly prefer Democratic candidates.
- Davis v. FEC, Arizona Free Enterprise Club v. Bennett, and McCutcheon v. FEC: All three of these decisions, which Roberts joined, advantaged wealthy candidates and donors over the less fortunate. Davis struck down the so-called “Millionaire’s Amendment” which allowed the opponents of self-financed candidates to raise additional money in order to compete against their opponent’s wealth. Arizona Free Enterprise Club struck down a law enabling publicly financed candidates to compete with candidates who raise significantly more money in private donations. McCutcheon struck down limits on donations to parties and candidates. All three decisions benefit Republicans, because wealthy individuals who are capable of making substantial political donations are much more likely to prefer Republicans to Democrats. In 2016, for example, exit polls found that 57 percent of individuals earning $250,000 a year or more voted for a Republican congressional candidate, while only 41 percent voted for a Democrat.
- Arizona State Legislature v. Arizona Independent Redistricting Commission: This case upheld Arizona’s independent redistricting commission, which insulated the state from partisan gerrymandering. In 2016, for example, Republican Donald Trump narrowly won the state with 49 percent of the vote, and Republicans won five of the state’s nine House seats — a fair result given the state’s partisan preferences. Roberts dissented from his Court’s decision, writing that power over redistricting should be returned to the state’s Republican-controlled legislature.
In each of these cases, in other words, Roberts voted to intervene in a way that advantaged Republicans over Democrats. Meanwhile, Roberts has heard several other election law cases where he called upon his Court not to intervene.
- Crawford v. Marion County Election Board: In Crawford, Roberts voted to allow Indiana’s voter ID law to take effect. Voter ID is a common method of voter suppression, frequently enacted by Republican legislatures, that disproportionately target students, low-income voters, and people of color — all of whom tend to prefer Democrats to Republicans.
- League of United Latin American Citizens v. Perry: In LULAC, a majority of the Supreme Court voted to strike down a Republican-drawn Texas congressional district for impermissibly diluting the votes of Latinos — a decision that benefited Democrats. Roberts dissented.
- Alabama Legislative Black Caucus v. Alabama: A majority of the Supreme Court reinstated a lawsuit alleging that Alabama weakened the power of black voters by packing them into a small number of districts. Roberts dissented. Had Roberts’ view prevailed that decision would have benefited Republicans because black voters in Alabama are overwhelmingly Democratic.
- Caperton v. Massey: In 2004, Democratic West Virginia Supreme Court Justice lost his seat to Republican Brent Benjamin. Benjamin’s campaign was boosted by $3 million in outside spending by Don Blankenship, a mining CEO who had a $50 million case pending before the state supreme court. Justice Benjamin ultimately cast the key vote to overrule this verdict. Though a majority of Roberts’ Court held that Benjamin should have recused himself from Blankenship’s case, Roberts dissented — effectively arguing that wealthy individuals like Blankenship should face no consequences for similar schemes.
- North Carolina v. North Carolina State Conference of the NAACP: In July of 2016, a federal appeals court stuck down the most aggressive voter suppression law in the country — a North Carolina law that, in the appeals court’s words, targeted “African Americans with almost surgical precision.” Roberts voted to reinstate the law for the 2016 election, though he lacked the votes to do so due to Justice Antonin Scalia’s death. Had Roberts’ view prevailed, the North Carolina law, which favors Republicans and hurts Democrats due to its impact on African Americans, would have been in full force in 2016.
So Roberts is right that, when the Court appears to favor one party over the other, it does “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.” He just hadn’t seemed very concerned about this problem in the past.