“The bottom line is voters should choose their representatives, not the other way around.” – ACLU voting rights attorney Alona Thomas Lundborg, criticizing the decision
By Miriam Raftery
June 27, 2019 (Washington D.C.) – By a 5-4 vote, the U.S. Supreme Court’s conservative majority has ruled that gerrymandering, or the redrawing of district lines to benefit a political party, is not unconstitutional. The ruling drew a blistering dissent by Justice Kagan and harsh criticism from voting rights advocates.
While the court has previously banned gerrymandering based on racial discrimination, the court majority concluded that no such prohibition exists to give the high court the authority to ban rigging district boundaries for political gain. The opinion vacates prior rulings by lower courts that had blocked gerrymandering in Maryland and North Carolina.
Justice John Roberts, who wrote the majority opinion, reasoned that our nation’s Founding Fathers knew when they assigned redistricting to state legislatures that politics could be a factor. ““We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.
But sophisticated computer programs in recent years have taken gerrymandering to new levels, resulting in some instances of states with strong Democratic party majority voter registration holding as little as 10 percent of seats in the state legislature That’s due to Republicans in power drawing district lines that condense many Democrats into a small number of districts, ignoring natural geographic boundaries to do so. The same could be done in reverse by Democrats in states that they control.
"Today, five Supreme Court Justices turned their backs on hundreds of thousands of people in Maryland and North Carolina stripped of their voice in Washington by power-hungry politicians," Karen Hobert Flynn, president of Common Cause, said in a statement. "The Supreme Court had the opportunity to end partisan gerrymandering once and for all but instead a narrow majority chose to wash their hands of the undemocratic practice."
Alora Thomas-Lundborg, staff attorney for the American Civil Liberties Union (ACLU) Voting Rights Project states on the ACLU website, “The bottom line is voters should choose their representatives, not the other way around.”
ACLU legal director Fred Levenson in Ohio states in an ACLU press release, “ The court’s decision to allow the practice of gerrymandering to continue, to flourish, and to evade review by the judicial system, leaves it in the hands of those who will continue to abuse their awesome power whenever they can to defeat the will of the voters.”
In a scathing dissent (pdf), liberal Justice Elena Kagan accused the high court's five conservative judges of abandoning their constitutional responsibilities "just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims."
"The majority's idea... seems to be that if we have lived with partisan gerrymanders so long, we will survive. That complacency has no cause," wrote Kagan, who sided with the court’s four liberal justices. "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 court did leave open the option for Congress, state legislatures and voter-backed initiatives to change gerrymandering practices, as well as for state courts to intervene – leading Kagan to note that if state courts are empowered to ban political gerrymandering, “Why can’t we?”
Leaving redistricting in the hands of legislatures is problematic, since the vast majority of states rely on their legislators to draw up their own legislative districts, according to Ballotpedia, though a few use independent commissions, including California, or other means.
Vermont Senator Bernie Sanders, one of some two dozen candidates seeking the Democratic presidential nomination, also denounced the decision – and offered one potential solution. "This is not what democracy is about," Sanders tweeted. "We can take back power by registering and mobilizing new voters."