SCOTUS punts on Maryland gerrymandering

Former California Gov. Arnold Schwarzenegger, left, and Maryland Gov. Larry Hogan attend a rally for “Fair Maps” at the Supreme Court in Washington March 26. On June 27, the Supreme Court issued an opinion leaving questions of partisan gerrymandering as seen in Maryland and North Carolina up to Congress and state lawmakers to remedy.

WASHINGTON — In a majority decision issued late last month, the Supreme Court of the United States opined that there is no legal standard for addressing partisan gerrymandering of the type seen in the 2011 drawing of Maryland’s congressional districts.

Chief Justice John Roberts delivered the majority opinion June 27, joined by justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Justice Elena Kagan issued a dissenting opinion with justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The decision jointly resolved partisan gerrymandering cases in North Carolina and Maryland, vacating previous District Court judgments. It remands the cases back to the lower court, ordering them to be dismissed for lack of jurisdiction.

“Partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the majority opinion holds.

In North Carolina’s case, congressional districts were drawn in 2016 to ensure Republicans held 10 seats in the U.S. House of Representatives, maintaining three seats for Democrats.

In Maryland, the partisan split was reversed. Democrats flipped the 6th District, a long-time Republican stronghold serving western Maryland. Democrats went from holding six seats in the House versus the two held by Republicans to seven. The 6th District was turned Democrat, leaving the 1st District, which includes the entire Eastern Shore, as the only reliably Republican-held district.

In the majority opinion, Roberts recognized the issue of partisan gerrymandering in these cases but questioned the federal courts’ ability to provide a suitable legal standard to remedy the issue, unlike issues of population inequality and racial discrimination in redistricting efforts.

“This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well,” the majority opinion states.

The majority opinion states that the Republican-controlled North Carolina General Assembly enacted the redistricting plan at issue in 2016. Lawmakers leading the effort reportedly instructed the mapmaker to ensure Republicans maintain 10 seats in Congress while giving three to Democrats.

“As one of the two Republicans chairing the redistricting committee stated, ‘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,’” Roberts’ opinion states.

The state’s Democratic Party, the nonprofit group Common Cause and 14 voters sued over the redistricting plan. District Court judges found for the plaintiffs, ruling that the plan violated the Constitution.

The defendants appealed to the Supreme Court, which remanded the case back to District Court. The initial verdict was upheld and the case was forwarded back up the judicial chain again.

The Maryland case stems from the 2011 redistricting effort, led by then-Gov. Martin O’Malley, a Democrat. Maryland Congressman Steny Hoyer, a self-described “serial gerrymanderer” and a fellow Democrat, was named an advisor to the redistricting committee.

“The Governor later testified that his aim was to ‘use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by ‘flipping’ one district,” the majority opinion states.

While consideration was reportedly given to flipping the 1st District, the decision was made instead to go for the 6th District, long held by U.S. Rep. Roscoe Bartlett, a Republican.

“To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. The 2011 Plan accomplished that by moving roughly 360,000 voters out of the Sixth District and moving 350,000 new voters in,” Roberts wrote.

The mapmakers moved about 66,000 registered Republicans out of the 6th District. About 24,000 registered Democrats moved in.

Prior to the 2011 redistricting, the 6th aligned Garrett, Allegany, Washington and the northern parts of Frederick, Carroll, Baltimore and Harford counties. Now, the 6th District maintains the three westernmost counties, but turns sharply south through Frederick County and into Montgomery County.

Bartlett lost the next election. Democrats have held the 6th District ever since.

The 1st District picked up some of that northern state line territory in Carroll, Baltimore and Harford counties, packing in Republicans previously located in the 6th District.

This was not the first challenge to Maryland’s 2011 redistricting plan. A suit was filed claiming racial gerrymandering in the map for the 3rd District, which includes parts of Baltimore City.

Presiding over that case, U.S. Court of Appeals Judge Paul V. Niemeyer wrote that the 3rd District resembles “a broken-winged pterodactyl, lying prostrate across the center of the State.”

“As a governor, I held that redistricting pen in my own Democratic hand. I was convinced that we should use our political power to pass a map that was more favorable for the election of Democratic candidates. That in this hyper-partisan era, we should not ‘disarm unilaterally.’ That this was legal and passes Constitutional muster. And it did,” reads a copy of a speech O’Malley gave in 2017.

In the case of the 6th District, a lower court ordered Maryland’s congressional districts be redrawn in advance of the 2020 election. The defendants appealed to the Supreme Court.

Maryland response

Gov. Larry Hogan, a Republican, is a vocal opponent of partisan gerrymandering. In a statement, he said the Supreme Court’s June 27 ruling “was terribly disappointing to all who believe in fair elections.”

“I pledge to vigorously continue this fight, both in Maryland and across our nation. Gerrymandering is wrong, and both parties are guilty. It stifles real political debate, contributes to our bitter partisan polarization, and deprives citizens of meaningful choices. The voters should pick their representatives, not the other way around. I will do everything in my power to restore free and fair elections for the people,” Hogan said in a statement.

He has sought legislative remedies to gerrymandering and issued an executive order to organize a redistricting commission following the lower court’s initial ruling.

“Next year, I will again introduce redistricting reform legislation in Maryland to put the drawing of districts in the hands of a balanced, fair, and nonpartisan commission — instead of partisan politicians. This is a problem we can, should, and must solve. It is, and will continue to be, one of my highest priorities as governor,” he said.

Following last year’s lower court ruling against the 2011 redistricting plan, Maryland Attorney General Brian Frosh, a Democrat, filed an appeal of the order to redraw the districts, as the Supreme Court was expected to take on partisan gerrymandering in the upcoming term.

In a motion, Frosh wrote that “further guidance from the Supreme Court will be important to ensure that ... state lawmakers do not redraw Maryland’s electoral map for 2020 using a standard that is not the one ultimately adopted by the Supreme Court.”

The Supreme Court failed to deliver on Frosh’s hopes for establishing a national standard.

“This is a sad day for our democracy. We urged the Supreme Court to adopt a nationwide standard that would prevent extreme partisan gerrymandering. The decision today instead prevents voters everywhere from challenging in federal court any redistricting map as excessively partisan,” Frosh said in a statement June 27. “The attention now turns to Congress, which has the power to outlaw partisan gerrymandering of Congressional districts.”

What is 'fair'?

The question Roberts and the majority found they could not answer was in determining “fairness.” Roberts wrote that “fairness” could mean a greater number of competitive districts or maintaining a proportionality of “safe” seats or keeping together political subdivisions.

“Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts,” Roberts wrote.

He wrote that once fairness is defined, the next question is “How much is too much?”

Roberts wrote that determining a potential violation of the one man-one vote precedent can be adjudicated by the court “as a matter of math,” partisan gerrymandering cannot be so legally addressed “because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.”

“It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support,” Roberts wrote.

Roberts wrote that racial gerrymandering cases also fail to provide an applicable standard for its political counterpart.

“Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship,” he wrote.

On top of all that, Roberts wrote that judges seeking to address partisan gerrymandering could be tasked with trying to predict the outcomes of future elections as well as potentially ensuring “prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent.”

“Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations,” Roberts wrote.

This is 'too much'

In her dissent, Kagan wrote that the partisan gerrymanderers at the heart of the case “debased and dishonored” American democracy, enabling “politicians to entrench themselves in office against voters’ preferences.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote for the dissent. “And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

Kagan wrote that while the majority listened to and agreed with all the facts of the cases at hand, members left them behind and focused on all the potential issues that could arise if the courts sought a legal remedy.

She wrote that “big data and modern technology” make today’s gerrymandering much more exacting than “crude linedrawing of the past” that “sometimes led to so-called dummymanders — gerrymanders that went spectacularly wrong.”

“And gerrymanders will only get worse (or depending on your perspective, better) as time goes on — as data becomes ever more fine-grained and data analysis techniques continue to improve. What was possible with paper and pen — or even with Windows 95 — doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, ‘we the people’ become sovereign no longer,” Kagan wrote.

Kagan concedes that the majority opinion is correct in identifying issues to be avoided in the courts, namely that judges “should not be apportioning power based on their own vision of electoral fairness” and that judges also should not be striking down maps “on the view that every smidgen of politics is a smidgen too much.”

She wrote though that what the majority opinion misses is that federal courts have reached a consensus of sorts on dealing with partisan gerrymandering claims based on states’ own determinations of fairness. She cites cases involving Ohio and Michigan to back her argument.

“And again: How much is too much? This much is too much: A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of a district from 47% Republicans and 36% Democrats to 33% Republicans and 42% Democrats. A map that in 2011 was responsible for the largest partisan swing of a congressional district in the country,” Kagan wrote, referencing the Maryland map.

The majority opinion issued by Roberts states that the framers of the Constitution gave Congress the power to address partisan gerrymandering. It also notes that states are attempting to address the issue through legislation such as Hogan seeks to establish independent redistricting commissions.

“The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void,” the majority opinion states.

Kagan argues that the congressional remedy — including a bill the majority opinion states was “introduced in 2005 and has been reintroduced in every Congress since” — may never come.

“Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight,” she wrote.

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