Politicians Can Pick Their Voters, Thanks to the Supreme Court

The Supreme Court on Thursday refused to serve as an arbiter for what counts as extreme partisan gerrymandering, opening the door for politicians of both parties essentially to pick their voters, disfavoring parties that are not in power. The decision is anathema to America’s democratic ideals.

Chief Justice John Roberts wrote in a majority decision joined by all four of his conservative colleagues that federal courts have no power to entertain claims that politically motivated map drawing violates the Constitution. In law-speak, such questions are “nonjusticiable” — judges have neither the authority nor a proper standard to weigh such claims. “In this rare circumstance, that means our duty is to say ‘this is not law,’ ” the chief justice wrote.

Justice Elena Kagan, reading a pained dissent from the bench, called the decision “tragically wrong” and expressed “deep sadness” over what the outcome will mean for the nation.

“Of all times to abandon the court’s duty to declare the law, this was not the one,” Justice Kagan wrote in her dissent, which was joined by her three liberal colleagues. “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.”

The two cases that the Supreme Court decided — or, rather, refused to decide — had offered the justices an opportunity to declare that courts have a duty to safeguard American democracy, whichever side is trying to rig it.

In one case, Common Cause v. Rucho, Republicans in North Carolina were doing the rigging, creating congressional districts in such a way as to ensure that Democrats would be disfavored despite the electorate’s nearly 50-50 composition. In the other case, Lamone v. Benisek, Democrats in Maryland were responsible — only one district was involved, but as Justice Kagan noted, “what was once a party stronghold” for Republicans became a Democratic district with 66,000 fewer Republican voters than it had previously. In both cases, lower courts concluded that this gamesmanship violated the Constitution’s First Amendment and equality guarantees, among other protections.

Ducking these constitutional problems, Chief Justice Roberts said that courts cannot be “politically neutral” and are incapable of devising a “manageable” way of dealing with maps drawn for partisan gain. That’s quite an admission from the chief justice, who has himself spent much of the Trump presidency assuring the public that “we’re not doing politics,” as he has put it.

Justice Kagan laid those complaints to rest, pointing to “baseline” districting criteria that some states have adopted to guide judicial decision-making — contiguity and compactness of districts, no dividing of counties, the state’s geography. In Justice Kagan’s view, there’s no need for judges to impose their “own view of electoral fairness,” as Chief Justice Roberts and his colleagues fear.

“This court has long understood that it has a special responsibility to remedy violations of constitutional rights resulting from politicians’ districting decisions,” Justice Kagan wrote. “Over 50 years ago, we committed to providing judicial review in that sphere, recognizing as we established the one-person-one-vote rule that ‘our oath and our office require no less.’ ”

It’s a dissent well worth reading in full, a rousing defense of the role of judges in policing rank partisanship in a process that is bound to begin anew following the 2020 census.

The newest justice, Brett Kavanaugh, quietly joined Chief Justice Roberts’s majority, despite indications during oral arguments that he may be amenable to curbing partisanship in redistricting. His joining the bench after the retirement of Justice Anthony Kennedy, who for many years left open the possibility of reining in these abuses, has effectively closed that door, maybe for good.

Besides North Carolina and Maryland, this ruling will have implications for court decisions that had thwarted gerrymandering in Michigan, Ohio and Wisconsin — all of which could be overturned, largely to the benefit of Republicans at the federal and state levels.

If there’s any comfort from Thursday’s ruling, it is that both the majority and the dissent acknowledged that Congress and the states must pick up the mantle of advancing democracy and promoting fairness in elections. But that comfort is small: Despite efforts at the state level to create independent redistricting commissions and increase access to the ballot box, entrenched state Republican and Democratic majorities will have an incentive, thanks to the Supreme Court, to draw districts to preserve their political capital — and stick it to voters in the process.

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