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Partisan Gerrymandering Isn’t The Supreme Court’s Problem Anymore

The Supreme Court will not end extreme partisan gerrymandering. In a 5-4 decision along ideological lines, the court ruled Thursday that partisan gerrymandering of congressional districts cannot be limited by federal courts. Chief Justice John Roberts authored the majority opinion, writing that “what the appellees and dissent seek is an unprecedented expansion of judicial power.”

Justice Elena Kagan’s dissent was scathing. “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote in her opening sentence. She argued that imposing limits on gerrymandered districts is not beyond the scope of the court: “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

The ruling almost certainly would have been different if Anthony Kennedy were still on the court. Before retiring last year, Kennedy had been the swing justice on previous gerrymandering cases. He had said that partisan gerrymandering was within the purview of the court but that the justices should hold off on ruling any particular gerrymander unconstitutional until a manageable standard for measuring gerrymandering emerged. Since he took that position in 2004, reformers had been attempting to find such a standard. Legal scholars and statisticians developed various measurements to try to win over the court, but without Kennedy, those efforts turned out to be futile.

The most obvious consequence of Thursday’s ruling is that, come the 2021 redistricting cycle, state legislatures will be free to draw maps that boldly favor one party over the other, without concern of having their maps struck down in federal court. (State courts are another matter, as we’ll get to.) That is not all that different from the status quo, as few — if any — states showed restraint in drawing partisan gerrymanders during the last redistricting process, in 2011.

Uninhibited partisan gerrymandering can have major implications for how our representative democracy works. In 2018, FiveThirtyEight simulated what an extreme partisan gerrymander would look like if it happened to congressional districts in every state, based on past voting records. Here’s what a Republican gerrymandered map would do to Congress:

And compare that to what a Democratic gerrymandered map looks like:

Those are extreme examples, of course, and Thursday’s ruling will not result in such a breakdown. The degree to which the next round of maps — drawn in 2021 — are gerrymandered will largely rely on the number of states under one-party control, since they can more easily pass uncompromising partisan maps. In 2011, 31 state governments were under one-party control, with almost twice as many under Republican control as Democratic. The 2020 election will determine how those numbers change during the next redistricting cycle.

Despite the ruling, reformers have a few other avenues still open to them, which Roberts himself acknowledged. The first is ballot initiatives, passed by a state’s voters, that give the power of redistricting to independent commissions. Eight states currently use such commissions to draw both their state legislative and congressional maps. However, ballot initiatives or referenda are available to voters in only 26 states, largely west of the Mississippi. Another option is to pass laws limiting gerrymandering. That’s an uphill climb, though. State legislative action is rare, and congressional action on the national level is highly unlikely in the nearterm.

A final avenue is for reformers to bring complaints in state courts, based on state constitutions. This model was first successful in Pennsylvania in 2018, when the state Supreme Court threw out Pennsylvania’s congressional map as an unlawful partisan gerrymander and ordered a redraw. In bringing these cases, reformers would likely rely on provisions in state constitutions that are more specific than anything in the U.S. constitution. For example, 26 states include language in their constitutions stating that elections shall be “free,” “free and equal,” or “free and open.” This strategy also relies heavily on state Supreme Courts having liberal majorities.

Even if the Supreme Court had ruled that partisan gerrymandering were unconstitutional, it would not have been the end of the argument. It would likely have taken years, decades, or longer for the court to settle on where exactly the line sits between legal redistricting and unconstitutional partisan gerrymandering. On the issue of racial gerrymandering, which can be unconstitutional, the court has spent decades trying to discern what exactly is legal.

In ruling that partisan gerrymandering is not an issue for the courts, the court avoided all that. A majority of Americans may take issue with extreme partisan gerrymandering, but now it’s up to somebody else to do something about it.

Read more: The Gerrymandering Project

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Galen Druke is FiveThirtyEight’s podcast producer and reporter.