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Will The Supreme Court Punt On Partisan Gerrymandering Again?

Welcome to a special edition of FiveThirtyEight’s weekly politics chat. The transcript below has been lightly edited.

sarahf (Sarah Frostenson, politics editor): There are two cases — Rucho v. Common Cause, a case from North Carolina, and Lamone v. Benisek, a case from Maryland — currently before the Supreme Court that deal with partisan gerrymandering, and a decision is expected any day now.

The Supreme Court has never ruled that a gerrymander was so partisan that it was unconstitutional. But this won’t be the first time the court has addressed the issue. Just last year, there were two cases before the court on partisan gerrymandering (one of which was the Maryland case, which is now in front of the court again). At the time, the court declined to address the merits of the challenges, instead ruling in each case on procedural grounds. So what do we think has changed since the last time the court took up this issue?

And welcome Amy Howe, SCOTUSblog co-founder and contributor, who is joining us to talk over the stakes!

amy.howe: Thanks. I’ve never done this before, but I’m looking forward to it!

ameliatd (Amelia Thomson-DeVeaux, senior writer): Welcome, Amy! And, Sarah, there is one big, obvious change this year — Justice Anthony Kennedy has retired and been replaced by Justice Brett Kavanaugh.

amy.howe: I agree, Amelia. The composition of the Supreme Court is the most noteworthy change. On partisan gerrymandering, as with so many things, Justice Kennedy was the swing justice. And we don’t really know what to expect from Justice Kavanaugh.

galen (Galen Druke, podcast producer and reporter): Yeah, lawyers and reformers were largely crafting their arguments around Kennedy’s thoughts on gerrymandering — which, as he wrote in an earlier opinion, are that partisan gerrymandering is a problem and that if a clear standard emerges for measuring its burden, the court should take action. That now seems somewhat irrelevant.

amy.howe: But as to the court taking up the issue again, the reality is that they didn’t have a lot of other options. Most of the court’s docket is discretionary, but redistricting cases are among a narrow set of cases with an automatic right to appeal to the Supreme Court, which is why the Maryland case is back before the justices. The justices had to do something — either say that they didn’t have jurisdiction over the case, affirm or reverse the lower court’s decision, or take up the appeal.

ella (Ella Koeze, visual journalist): But the Supreme Court adding the North Carolina case to the docket was new.

amy.howe: The North Carolina case was at the Supreme Court last year, but the justices sent it back to the lower court for a new look in light of the rulings last year. The District Court again ruled for the challengers and blocked the state from using the map on the ground that there was partisan gerrymandering.

ameliatd: Yeah, the North Carolina case is interesting because the state legislators were extremely open about their intentions when they drew the state congressional maps, which may have been a strategic blunder on their part. When the most recent round of maps was passed, in 2016, one of the lawmakers said in a floor speech: “I think electing Republicans is better than [electing] Democrats. So I drew this map to help foster what I think is better for the country.” Even in today’s political climate, it’s rare to have someone so nakedly announce that they’re drawing districts to bake in an advantage for their party. So that could, in theory, make a difference to the court.

ella: But maybe because what happened in North Carolina was so egregious, it might give the court an opportunity to issue a narrower ruling?

sarahf: Ella, you worked on a project earlier this year that explained “partisan bias,” which is one of the quantitative tools challengers are using in the North Carolina case to bolster their argument. Tell us a little bit how that metric works and what you found in North Carolina.

ella: Well, first of all, the metric known as “partisan bias” has been around for a pretty long time. What it basically does is try to estimate what the seat breakdown between Democrats and Republicans would be for a given map (like of North Carolina’s congressional districts) when the vote margin (in this case, the statewide two-party vote in U.S. House races) is split 50-50.

So in a state like North Carolina that has roughly equal numbers of Democrats and Republicans, you’d expect that a 50-50 vote margin would lead to a 50-50 breakdown in the state’s U.S. House seats. But we found that Republicans have recently had a big advantage in the state in terms of turning votes into seats — in other words, that there was a partisan bias against Democrats — as you can see in the chart below. If there was little partisan bias, the colorful lines that represent each election cycle would come close to the center of the graph, at the 50-50 point. And that’s what they pretty much do for North Carolina’s U.S. House elections from 1992 through 2010. But in the most recent decade of maps, the lines cross the center very far from the 50-50 point, to the tune of a significant Republican advantage.

However, a note of caution — partisan bias was just one metric out of several that the plaintiffs used to try to convince the justices that the North Carolina map was an unconstitutional partisan gerrymander.

The Supreme Court has not historically been terribly friendly to the idea of using a single metric to determine whether partisan gerrymandering exists. So I would be pretty surprised if the justices found partisan bias was a convincing enough metric on its own.

galen: Yeah, in North Carolina, the lawyers challenging the constitutionality of North Carolina’s map really threw the kitchen sink at the issue. They did not rely on just one measure like partisan bias to try to prove that a partisan gerrymander had gone too far. They also, for example, used algorithms to show what thousands of neutrally drawn maps would look like. That’s something of a contrast with last year, when advocates in a partisan gerrymandering case out of Wisconsin put a lot of emphasis on the efficiency gap — yet another metric that attempts to measure the degree to which a map is gerrymandered.

So if the North Carolina case still doesn’t persuade the court, I think there’s a real question of what kind of metric or standard will convince it.

ameliatd: It’s been kind of remarkable to see all of the different quantitative tools that have been presented to help judges figure out when a partisan gerrymander goes too far. People have been really creative in trying to solve this — the justices have no shortage of options here!

sarahf: But what are some of the challenges in the Supreme Court taking up a metric to define whether partisan gerrymandering has occurred? As you all have mentioned, the justices have shied away from setting a standard in the past.

amy.howe: A real challenge is that several justices on the Supreme Court are inherently suspicious of essentially all of these metrics. Chief Justice John Roberts, in the oral argument in the Wisconsin gerrymandering case in the fall of 2017, called them “sociological gobbledygook.”

galen: Yeah, the court seems hesitant to rely on math. Of course, proponents of using these methods will point to the math that has traditionally been used to draw districts of equal population in accordance with the Supreme Court’s “one person, one vote” ruling in Reynolds v. Sims.

ella: I’m really interested to see whether the court will try to define what a partisan gerrymander is (whether using math or intent or some combination of the two). Because as we explained in our gerrymandering project last year, it’s easier to say something is a gerrymander than to describe one out of context.

ameliatd: But there’s a deeper issue at play, too — the justices will undoubtedly also be considering whether judges should be involved at all in policing these gerrymanders. And so another big difference this term is that it’s more of a possibility that the court might just say, “OK, this isn’t an issue for the courts after all, so we’re shutting the door on these challenges completely.”

amy.howe: It was really interesting to attend the oral arguments in the Wisconsin and Maryland cases last term and then go to the arguments this term and listen to how the discussion had shifted on the issue that Amelia just mentioned — the justices are now talking about whether partisan gerrymandering is something that the courts should be involved in at all.

ameliatd: Although at least in the lower courts, some judges clearly do think this is something they’re capable of dealing with. We’re now up to more than a dozen judges who have ruled in various panels that specific partisan gerrymanders are unconstitutional.

galen: I am going to issue a prediction.

ella: I’m ready for it.

** nervously waiting **

galen: The Supreme Court is not going to entirely rule out partisan gerrymandering as an issue that can be decided by the courts. That is to say, even if they don’t rule in favor of the original plaintiffs this time, I think they’re likely to leave open the possibility of someday ruling in a future plaintiff’s favor and endorsing a standard for measuring unconstitutional partisan gerrymandering.

ameliatd: Why do you think that, Galen? Because Kavanaugh doesn’t want to come out guns blazing in his first term? It would be a pretty ballsy move to say in your first term that a question the court has been trying to answer for decades isn’t one judges should weigh in on after all.

galen: Yeah, it would just mark such a significant departure from the status quo, which is: “Yes, this is something courts can weigh in on; we just don’t have a standard.” Kavanaugh even said this during oral arguments: “I took some of your argument in the briefs, and the amicus briefs, to be that extreme partisan gerrymandering is a real problem for our democracy — and I’m not going to dispute that.”

ameliatd: But is there a point at which the justices can’t keep kicking the can down the road? The lower court rulings are just going to continue to pile up. And at a certain point, is the Supreme Court going to get sick of dealing with these cases? I think that point could be now.

amy.howe: Having “punted,” to use a technical legal term, on the issue of whether courts should get involved in partisan gerrymandering cases at all last term, it does seem like the court has run out of ways to punt in these cases.

And as Amelia mentions, with the lower courts’ automatic right to appeal to the Supreme Court, the justices are faced with the very real possibility of becoming the court that has to review every. single. partisan gerrymandering decision. And don’t forget, the census (another can of Supreme Court worms) is every 10 years, so the flood of cases could be pretty constant. Here we are in 2019, and we’re still dealing with redistricting from the 2010 census.

galen: Yeah, if the court doesn’t want to deal with these cases anymore, they have to say that this is not an issue for the courts and is indeed a political question — “never come back to us again.” Because if they rule that there is a standard, then there will be a flood of cases challenging every map around the country.

ameliatd: Given the Supreme Court’s recent penchant for punting, the possibility you’re describing sounds realistic, Galen.

The Supreme Court: always capable of punting.

But it also seems like it just sets them up for more headaches and fighting.

amy.howe: I’m just having a hard time seeing the off-ramp that allows them to punt again. I feel like they need to fish or cut bait after having punted last year and in a case called Vieth v. Jubelirer (among others) 15 years ago.

ella: Amy, as long as we are predicting things, which one do you think they will do: fish or cut bait?

amy.howe: I think they’re likely to cut bait — say this is not an issue for the courts.

galen: Ooohhhh, interesting.

ameliatd: I would say I agree, Amy, but Kavanaugh did seem more concerned about partisan gerrymandering than I was expecting during oral arguments.

Granted, that might not mean anything. He could have been playing devil’s advocate, trying to trick all of us into making bad predictions!

(Clearly this is all about us.)

galen: But one of the arguments Kavanugh did lay out for cutting bait is that there has been movement on the state and congressional level that could make court involvement unnecessary.

Now, obviously, reformers disagree with that.

ameliatd: Right. That’s one argument I’ve definitely seen floated: “Look, the voters are dealing with it,” so there’s no need for courts to weigh in.

amy.howe: Yes, along with the idea that states could have independent redistricting commissions to draw the maps.

ella: Michigan is a recent example of that, right? Voters there approved a ballot initiative to establish a citizen-run redistricting commission, and any registered voter can apply to be on the commission (my dad, for instance, is considering applying).

galen: Yes, it is. But this idea that voters/states can take care of this on their own is somewhat complicated. Because it depends a lot on where you live. Most states east of the Mississippi, for instance, don’t have ballot initiatives that would allow voters to initiate reform.

ameliatd: And the people who really have the power to establish these “fairer” solutions (aka state legislators who are in the majority) are the ones who are currently benefiting from the status quo.

Look at a state like Maryland. Nobody will say they like partisan gerrymandering, but the legislators are also reluctant to just throw up their hands and start an independent commission. The Republican governor, Larry Hogan, was pushing for an independent commission, but the state’s Democratic lawmakers said they would only go along with it if other states did it, too. Which is, according to reformers, an argument for getting the federal courts involved.

sarahf: Also, fun (?) electoral fact, the district that is disputed in the Maryland case as being unfairly drawn to favor Democrats is, in fact, the district that 2020 Democratic contender and former U.S. Rep. John Delaney once represented.

galen: And when it comes to voters ousting gerrymandering politicians, as we have seen in Wisconsin on the state legislative level, a strong gerrymander can weather almost anything (even a blue wave). Also, it is rare that state legislators give up power all on their own.

ameliatd: Right — and why would you, especially if other states aren’t doing it?

ella: Yeah, there is really no incentive for legislation that’s not driven by voter initiatives.

galen: In 2018, Ohio legislators approved and put to voters a constitutional amendment creating a bipartisan process for drawing the state’s congressional maps. But Ohio was also kind of a rare situation, in that both parties were unsure of who might get to draw the next round of maps in 2021 and wanted to reduce risk.

sarahf: This might be too naive of a question, but why couldn’t the Supreme Court require states to set up independent commissions as part of determining whether a partisan gerrymander has occurred?


amy.howe: Right. For instance, the lawyers representing the challengers in the North Carolina case pushed back in the oral arguments against the idea that an independent redistricting commission could solve the problem, because it would have to be approved by the state’s Republican legislature.

And, Sarah, the Supreme Court can’t require states to set up commissions. In fact, there was a Supreme Court case a couple of years ago challenging Arizona’s use of an independent commission as unconstitutional. The commission barely survived — the vote was 5-4.

ella: Also, it’s unclear whether calling something an independent commission really means that much when state legislators can define the terms for commissioners.

ameliatd: That’s a really important point, Ella. People talk a lot about independent commissions as a more even-handed solution, but they’re not necessarily immune from politics. Some states, for example, have commissions staffed by political appointees or people with explicit partisan affiliations.

But even though the vote in the case Amy mentioned was narrow, there is now precedent saying independent commissions are constitutional — at least when they’re established via ballot initiative.

So it would be another kettle of fish for Roberts to allow that to be reversed on his watch.

galen: Yeah, overturning that would be bold.

amy.howe: Justice Kennedy was in the majority in the independent commission case — just throwing that out there.

ameliatd: I’m not saying it’s not possible. I just think it would be another ballsy move in a court that seems to be trying to tread pretty lightly on controversial issues right now.

But there are still outstanding opinions, I know, I know. So these could be famous last words.

amy.howe: There are lots of outstanding opinions, but only a few big ones, and this is definitely one of them.

ella: So I have a question for you all. Do you think it’s possible that the Supreme Court could say that a gerrymander’s origin has to be as blatant as what happened in North Carolina for it to be unconstitutional? Or I guess, put another way — do you think the court could say what happened in North Carolina is definitely an example of a partisan gerrymander, but we’re still unsure in the Maryland case, and we’re not yet willing to define a metric?

galen: Yes.

ella: That seems pretty risky for reformers!

galen: Yeah, reformers would hate that because it’s unlikely lawmakers would ever expose their underlying motivations as blatantly as they did in North Carolina.

ella: But I guess it would require the justices to say that partisan gerrymandering is unconstitutional, which would be something of a win for reformers.

ameliatd: I guess the question is: Can the justices make this seem futile for reformers in the short term without totally shutting the door? I don’t know. With the 2020 census coming up, there’s sure to be more litigation, and I think this is something Democrats are paying attention to this time in a way that they weren’t, really, post-2010.

sarahf: So to wrap, what do you see as the key differences in the stakes from the last time the Supreme Court weighed in on this topic? And what do you think is the most likely outcome?

ameliatd: This time, the court arguably has an incentive not to punt again. So it seems possible to me that this is the year the court finally says, “Nope, this isn’t for the courts to get involved with.” Or maybe as Ella suggested, they rule against North Carolina because the process was so blatantly partisan but as a result set the bar for what counts as an unconstitutional gerrymander very, very high.

galen: I feel like I have to stick with the court punting, but honestly, who knows.

ella: One difference that interests me is the strategies of the plaintiffs (one metric vs. everything under the sun). I really don’t know how it could go. Kavanaugh is such a wild card.

And so is democracy!

galen: Kavanaugh did clerk for Kennedy, which is one thing reformers like to remind me.

So this is one case where we are going to find out pretty early on how much osmosis there was.

amy.howe: Just a reminder, Justice Neil Gorsuch also clerked for Kennedy. But I think because there are slight differences in how the cases came to the Supreme Court as compared with the last pair of cases, the Supreme Court has fewer off-ramps, which makes the justices more likely to decide the cases on their merits.

I think the two most likely outcomes are either: (1) a 5-4 ruling that courts should stay out of partisan gerrymandering cases, period; or (2) a narrow (but less divided) ruling that bars really egregious partisan gerrymanders, without saying a whole lot about exactly what those are.

ameliatd: It’s important to stress, though, that this issue is not going away regardless of how the court rules. The question is where the battle goes next — does it stay mostly in the federal courts, or does it shift elsewhere (like the state courts)?

Redistricting is really hard, guys.

ella: Has good maps, though.

amy.howe: And the justices think it’s really hard too. Fortunately we only have to write about their opinions; they actually have to try to solve the problem.

Sarah Frostenson is FiveThirtyEight’s former politics editor.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.

Galen Druke is FiveThirtyEight’s podcast producer and reporter.

Ella Koeze was a visual journalist for FiveThirtyEight.

Amy Howe is a co-founder of the SCOTUSblog and reports regularly on the Supreme Court.