The Supreme Court ruled that Partisan Gerrymandering was non-judicable on a 5-4 vote in Rucho v. Common Cause
Partisan Gerrymandering, a method used to influence many elections since the beginning of the Union, has officially been ruled non judiciable by the Supreme Court in the landmark case Rucho v Common Cause. This decision means the Court deemed themselves unable to exercise their judicial authority over the matter, despite it being “incompatible with democratic principles”.
Partisan gerrymandering is the idea of reorganizing districts to favor one political party or disadvantage the other. For example in 2018, Republicans received only 50% of the votes but won ten out of the thirteen house seats.
This was achieved through organizing the districts in a certain manner so as to pack the voters into certain districts or split them among multiple. The obvious unfairness of this is needless to be said, but the question remains: How can we stop it?
The new gerrymandered maps created by the Republican party in 2016 (which continued in effect through the 2018 elections), were immediately challenged by Common Cause, the North Carolina democratic party, using four main points: “[The new map] diluted the electoral strength of Democratic voters, violating the Equal Protection Clause; retaliated against voters for their support of Democratic candidates, violating the First Amendment; denied voters the right to elect their preferred candidates, violating the Constitution’s requirement in Article I, Section 2 that representatives be chosen ‘by the People of the several States’; and exceeded the State’s authority under the Elections Clause to determine the ‘Times, Places and Manner of holding Elections.’” (Harvard Law Review).
The North Carolina District Court case found gerrymandering unconstitutional for the four reasons presented above. The defendant, Senator Robert Rucho, then appealed to the Supreme Court with the case. This case was consolidated with a Maryland case with the same basis and same lower court ruling, in which the defendant appealed to the Supreme Court as well.
The Supreme Court came to the verdict that partisan gerrymandering was non judiciable in a 5-4 vote. Chief Justice John Roberts delivered the majority opinion: “Aware of electoral districting problems, the Framers chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.”
The dissenting opinion from Justice Elen Kagan read, “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. ” The dissent highlighted how preserving fair elections must be a top priority.
Roberts’ opinion claimed that the federal courts cannot exercise power on a practice within the states, and that it was non judicable. However, election fairness must remain a top priority, and gerrymandering was a clear violation of this necessity. From Roberts’ opinion, “The ‘central problem’ is ‘determining when political gerrymandering has gone too far.’” The problem with this approach is that nothing is done until gerrymandering has gone too far, in which case it is too late. Elections must be protected from gerrymandering or else risk squandering the representation of the people and the will of the governed.
In gerrymandering, the votes of the opposing party to the gerrymander are nullified by the redistribution of the districts. By nature, states should be divided into districts based on factors such as their individual economies, as this would give greater representation on the interests of the different peoples. Dividing districts based on political views creates an inherent disadvantage and misrepresentation for the other party’s voters. If half of the state supports one party’s ideals, three-fourths of the seats should not go to the other. However, gerrymandering creates innate bias and influences elections in a negative manner. Furthermore, it discriminates against those who vote for the other party and their representation, violating the Equal Protection Clause. Sam Wang, director of the Princeton Gerrymandering Project which aims to eliminate partisan gerrymandering on a state-by-state level, said “Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial ‘packing’ and ‘cracking’ as mere partisanship.”
Roberts and the majority acknowledged this much, recognizing that it may be “incompatible with democratic principles”; however, they still claimed gerrymandering to be non judiciable. In doing this, the integrity of the democracy was put at risk. If someone has the power to end gerrymandering, they must do it, despite whatever they believe their powers are. Allowing gerrymandering allows misrepresentation of the people’s votes, making the people’s voices not heard and therefore pushing America further from a democracy and closer to an aristocracy. Said Emmet J. Bondurant II, a nationally recognized and highly awarded trial lawyer who successfully argued Wesberry v Sanders and established that each Congressional district must have (approximately) equal population in 1964: “The right to equal, popular representation...”, claiming gerrymandering to be denying people of their rights.
Finally, the decision also shows a racial bias. Racial gerrymandering was outlawed in 1995 in Miller v Johnson. Professor Girardeau A. Spann of Georgetown Law said: “Yes, racial discrimination is bad. Government ought not to do it, but so is political discrimination, and they’re equally rooted in constitutional principles. One in the Equal Protection Clause, one in the First Amendment. I just honestly don’t see the difference. ” Here the Professor claimed that racial and political gerrymandering were essentially the same, so why should they be treated differently in the Court?
Partisan gerrymandering and gerrymandering as a whole is an egregious injustice as it compromises election integrity and discriminates against people for political beliefs. The Supreme Court has made its verdict; now the states must make their own. We as individuals must step up and spread the word about the practice, speaking out and voting in order to help it get outlawed one state at a time.