For the second time in less than two years, partisan gerrymandering is back in front of the Supreme Court. Last term, the court seemed like it might rule that some partisan gerrymanders are so extreme that they violate the Constitution. But instead the justices punted, issuing a narrow ruling in June that rejected the cases on procedural grounds. Today, the justices will consider a pair of cases — a new case from North Carolina and one of the cases from last term from Maryland — that could, in theory, change the way electoral maps are drawn.
But the chances that the court will create a standard for unconstitutional partisan gerrymandering seem even lower than they did last year. Justice Anthony Kennedy, who was long viewed as the swing voter on the issue, retired last summer. Now the challengers need to convince a court with a conservative majority that it can — and should — declare partisan gerrymandering unconstitutional. And that won’t be an easy task. “In general, ideologically conservative judges aren’t sympathetic to the idea that courts should get involved — they think it’s a political question,” said Daniel Tokaji, a law professor and election law expert at Ohio State University. So if the court again chooses not to rule on the constitutionality of partisan gerrymandering, where will activists take the gerrymandering fight next?
Some groups that are trying to change how redistricting is done — like the National Democratic Redistricting Committee, founded in 2017 by former Attorney General Eric Holder — have begun working on other strategies. Often, these approaches are hard to separate from partisan politics — Holder’s group, for example, is aligned with the Democrats and primarily targets gerrymandering that favors Republicans. But some Republicans, like former California Gov. Arnold Schwarzenegger, have also made the issue a priority, and reformers on both sides are aiming to take map-drawing out of the hands of state legislatures. “We’re approaching this like a jigsaw puzzle,” Holder said. “If we have the federal courts open to us, that’s a tool we’ll use. But we’ve never seen litigation as the only way to attack the problem of partisan gerrymandering.”
That means that if the Supreme Court doesn’t decide that extreme partisan gerrymandering is unconstitutional, the battle will likely shift to the states. Several strategies are already being tested, but are these alternatives to the federal courts likely to bring advocates more success?
Tackle gerrymandering in state courts
Court challenges to electoral maps aren’t limited to the federal courts — they can also happen on the state level. For example, North Carolina’s Republican-drawn congressional map is before the U.S. Supreme Court today, but it is also being challenged in state court. And it’s not unprecedented for a state court to weigh in, independent of the federal courts: The Pennsylvania Supreme Court ruled last year that the congressional map drawn by the Republican legislature in 2011 ran afoul of the state constitution, saying that the map — which benefited the Republicans — violated the state’s guarantee of “free and equal” elections. The court ended up releasing a replacement map that helped the Democrats but also more closely reflected the political makeup of the state’s electorate.
For groups like Holder’s, this win in Pennsylvania created a blueprint of sorts for attacking partisan gerrymandering in states with similar constitutions. In a recent paper, Bernard Grofman, a political scientist at the University of California-Irvine, and Jonathan Cervas, who just completed a political science Ph.D. there, pointed to a tally by another scholar that showed that there are 12 states with constitutions that have provisions basically identical to the one the Pennsylvania court relied on, while another dozen or so states have similar language in their constitutions. Not all of these states have conditions that allow for partisan gerrymandering, but the language in their constitutions makes these particular states theoretically ripe for a challenge. “I think it’s fair to anticipate that we will be seeing more litigation over this issue in the state courts, regardless of what happens at the Supreme Court,” Grofman said. That’s because most state constitutions protect voting rights more explicitly than the U.S. Constitution, giving state courts more latitude to strike down partisan gerrymanders.
But going through the state courts won’t necessarily solve the problem the Supreme Court has struggled with for decades — identifying when a partisan gerrymander has gone too far. “I don’t see why this will be easier for a state court to deal with,” said Derek Muller, a law professor and election law expert at Pepperdine University. He acknowledged that state courts might be more willing to weigh in because the judges who sit on them are often elected, rather than appointed, but said that might not be a good thing: “In a sense, you’re just fighting partisanship with partisanship.”
Grofman thinks that state courts may be able to outline workable standards. But, he said, once courts make the rules, state legislators will likely try to find ways to get around them, an approach he has termed “stealth gerrymandering.” For example, after the Pennsylvania map was deemed unconstitutional, Republican state legislators initially proposed a substitute plan that was still criticized as maintaining an advantage for Republicans. Pennsylvania’s governor, a Democrat, rejected the plan, and the court ended up using a separate map. Grofman anticipates that more subtle attempts to maintain an advantage for one party over the other will be difficult for courts to police.
Put gerrymandering on the ballot
Another approach that reformers could take is to turn away from the courts altogether and engage with partisan gerrymandering in the system that made it: electoral politics. In the 2018 midterms, voters in four states approved ballot measures creating independent redistricting commissions, which can make elections more competitive.
However, not all states permit voters to put initiatives directly on the ballot. And as Tokaji told me, a well-funded opposition can be deadly to a ballot initiative campaign, which means that bipartisan support is key. “If voters are confused about a ballot initiative, they tend to vote no,” he said. “And it’s not hard to confuse people if you have a lot of money.”
Of course, elections can also diminish lawmakers’ ability to create gerrymandered maps — especially if one party loses control of the governorship, since in many states, governors have veto power over how district boundaries are drawn. These electoral efforts mostly involve targeting Republican governors and legislatures, since the GOP controlled the process in more states in the most recent round of redistricting. “Electing a Democratic governor who has veto power over the state’s maps in 2021 — that’s a powerful check on a Republican legislature,” Muller said. “The same thing when you’re able to flip one house of a state legislature.” But because there are only so many competitive state legislatures or gubernatorial seats, he said, there are a limited number of states where this kind of strategy is viable.
Raise public awareness
Another tack is to organize grassroots activists to put pressure on state legislatures to improve transparency when they’re drawing political boundaries. Holder’s group, which recently merged with Organizing for Action, former President Barack Obama’s political committee, is doubling down on this approach ahead of the redistricting that will take place after the 2020 census. “One of our goals is to ensure that these maps aren’t being drawn in back rooms and then quickly pushed through the legislature,” said John Bisognano, executive director of Holder’s group.
But some experts I spoke with were skeptical that increased public awareness would have an impact, at least in the short term. “It’s pretty easy for legislators to have a dog and pony show where you pretend to be transparent but then keep the actual plan close to the vest,” Tokaji said. That said, he thinks growing awareness could have a bigger impact in the long term and is already changing the conversation around gerrymandering. “Ten years ago, people weren’t talking about this the way they are now,” he said.
One thing is obvious — none of these strategies is a silver bullet. The possibility that the Supreme Court will decide whether a partisan gerrymandering is unconstitutional may have made changing how states draw electoral district boundaries seem deceptively simple. But that’s a difficult and inherently piecemeal task. So advocates who want these changes may need to engage with electoral politics or the state courts regardless of how the Supreme Court rules — and if the justices do, once again, decline to rule gerrymandering unconstitutional and set a standard, expect states to become the new ground zero for gerrymandering challenges.