Chief Justice John Roberts called the decision a “political [question] beyond the reach of the federal courts,” while Justice Elena Kagan declared it “[abandoning] the Court’s duty to declare the law” in a fiery dissent. Advocacy groups across the country reacted with similar vigor. The Brennan Center for Justice called it “truly appalling for the long term health of our democracy.” And Common Cause, a plaintiff in the case, excoriated it as the Supreme Court “[turning] their backs on hundreds of thousands of people…stripped of their voice in Washington by power-hungry politicians.”
While many contemporary court rulings have raised vehement condemnation from both sides of the political aisle, the Supreme Court’s June 2019 ruling represented another difficult obstacle in a long, hard-fought political battle. The decision dominated news headlines and discussion for days afterwards. But what could have stirred such a debacle?
Partisan gerrymandering has risen in prominence in the national conscious as increased conversation about the state of American elections, ranging from election security to the status of the Electoral College, have led to fervent desire for electoral reform. The more widely-known racial gerrymandering, already outlawed as a violation of constitutional rights by the Supreme Court in 1995, has given way to partisan gerrymandering. This act of “politicians choosing their voters” has led to increasing amounts of litigation in order to throw out existing congressional and legislative districts and redraw them.
While there has been limited success through this way, the June 2019 Supreme Court ruling stopped much of the widespread efforts. The ruling, announced after hearing two cases (Common Cause v. Rucho and Lamone v. Benisek), deigned that federal courts no longer had jurisdiction over partisan gerrymandering and that the matter was to be left to voters, state institutions, and Congress.
For Kathay Feng, the National Redistricting Director of the plaintiff, Common Cause, the ruling was ultimately disappointing, but not entirely unexpected. With the retirement of Justice Anthony Kennedy in 2018, who was largely seen as a swing vote on the issue, the case became harder to argue. The result, was what they had unfortunately feared: the Supreme Court, as Feng put it, “ducked the issue.”
The Supreme Court has ruled on the issue of partisan gerrymandering multiple times since the start of the 21st century. However, every time, the justices have dodged the issue. John Henderson, an Assistant Professor in Political Science at Yale, described the legal reasoning behind these decisions. One avenue through which many arguments had been made in the past relates to the Equal Protections Clause, trying to classify party members as a protected minority within districts. However, this method was largely dismissed in the 2004 case, Vieth v. Jubilerer.
“[In Vieth v. Jubilerer], the Supreme Court rejected that logic,” Henderson said in an interview with The Politic. “The idea of being a Democratic voter is not the same as being a protected minority voter.”
Indeed, the Supreme Court at the time ruled that the matter was nonjusticiable because there was no clear standard to determine the extent and damages of partisan gerrymandering. This has led to the current state of affairs, where many of the current efforts against partisan gerrymandering in the 2010s have thus been focused around determining a measurable standard of damages, according to Henderson.
But beyond legal reasoning, political considerations have also affected the nation’s highest court in their decision-making.
“The political logic is going to override any judicial logic in this case,” Henderson explained, “[the Supreme Court is] not interested in adjudicating party maps year after year after year.”
However, the Supreme Court’s ruling puts it at odds with state courts and other federal courts that have ruled in favor of establishing some limitations on partisan gerrymandering. Thomas Wolf, Counsel for the Democracy Program at the Brennan Center for Justice, pointed out in an interview with The Politic that “there are both Republican and Democratic appointed judges who agreed that there were standards [to measure partisan gerrymandering].”
“The Supreme Court’s position on partisan gerrymandering is actually an outlier position…. Federal courts in Wisconsin, North Carolina, Maryland, Michigan, and Ohio all determined that there were legal standards to apply and actually struck down maps for being unconstitutional,” Wolf stated. “Unfortunately, [the Supreme Court] just ended up being the most important out of all the opinions.”
Feng concurred with much of Wolf’s points. With the Common Cause v. Rucho case moving through the federal court process many times, Feng explained how Common Cause received “several 100 page judgements in [their] favor…in the lower courts.”
“[The lower courts] were able to unanimously find that the partisan gerrymandering was egregious and they had the patience to slog through understanding what the potential approach for finding manageable standards would be.” Feng elaborated, “these judges live in these states where the challenges are being brought. Because they have to live with it and because they were dealing with and looking at the facts first hand, it is possible that their conclusion was grounded in the kind of reality that the Supreme Court’s was not.”
Nonetheless, after the ruling, with a divided Congress making any legislative action unlikely, many advocates have moved forward with state-led and electoral efforts with increasing urgency. While these local efforts had been going on for years, they’ve been subjected to increased focus once federal change no longer could be depended on to solve the issue. In recent years, much of the effort has been on two policies: getting state courts to overturn existing maps on the congressional and legislative level as well as creating independent redistricting commissions to draw fairer maps in 2021.
“States have fewer avenues to seek redress when it comes to partisan gerrymandering,” Feng stated. “The two primary avenues that many people will now have to rely on is…to push for an independent redistricting commission or other kinds of reforms…[or]…to pursue litigation.”
A primary example of this state and local change has been in the state of North Carolina. The state, which was served as a paradigm of partisan gerrymandering in the June Rucho v. Common Cause case, has long been a powder keg for partisan dispute over congressional and legislative lines. Already a battleground state, North Carolina has a near equal split of registered Democrats and Republicans with a 2014 Pew Research Center poll finding the state population was 41% Republican and 43% Democrat.
North Carolina has been relatively divided in their choices for representation as well. While the state’s voters voted for the Republican presidential nominee in nine of the last ten elections, they’ve also elected a Republican governor only four times in the last 120 years. However, despite the near fifty-fifty party split in the North Carolina 2018 popular vote, North Carolina is federally represented by twelve Republicans and only three Democrats (including both Republican senators).
A recent preliminary injunction issued by a North Carolina state court forbids the usage of the current congressional map in the state for the 2020 elections, due to unfair partisan lean. This comes after the same North Carolina court also struck down North Carolina’s state legislative map in September.
“The actual analysis that the North Carolina state courts are using to strike down these maps doesn’t differ in any real meaningful way from the kinds of analysis [that was] used in federal courts.” Wolf elaborated that , “ although nominally these cases in North Carolina are brought under a different body of law,…they’re using the same analysis that was…presented to the U.S. Supreme Court.”
In a similar case, the battleground state of Pennsylvania also had its congressional map overturned by the Pennsylvania Supreme Court and eventually redrawn more equally. Pennsylvania, similar to North Carolina, has around an equal number of registered Democrats and Republicans. However, the state has consistently been federally represented by six Democrats and fourteen Republicans since the 2011 redistricting (including one Democratic senator and one Republican senator). The Pennsylvania Supreme Court deemed the 2011 map, drawn by state Republicans, to be “aimed at achieving unfair partisan gain.” After the redraw, the map was immediately tested in the 2018 midterms. The result: Pennsylvania would now be federally represented by ten Democrats and ten Republicans.
However, state supreme courts redrawing maps is exceedingly rare according to Henderson. While he sees them as the “fairest” and “most impartial” arbiter, Henderson explained how most state supreme courts simply “don’t feel equipped to [redraw maps].”
Partisan gerrymandering has been particularly intense across all states. An analysis by The Washington Post found that while battleground states like the aforementioned Pennsylvania and North Carolina exemplify some of the worst gerrymandering cases; even reliably red or blue states deal with intense gerrymandering. Solidly blue Illinois and Maryland’s district lines, both of which were drawn by Democrats, are considered some of the most gerrymandered states. Similarly, ruby red Alabama and Louisiana have been gerrymandered by Republicans in their respective state legislatures as well.
But gerrymandering has never been a new phenomenon. As Henderson noted, “for a lot of American history, there have been these manipulations.” However, Henderson pointed to technological innovation as the culprit for the increased severity of the issue.
“It’s really hard without the kind of computing technology we have now to draw maps that would be so efficient at overriding people’s input in the electoral process. Today, computing power allows people to do gerrymandering with such efficiency and such precision,” Henderson said.
Feng agreed with Henderson’s point about the unintended effects of technological advances.
“Whenever you have a single party controlling both houses of the legislature. They cannot help themselves. They want to gerrymander and they want to take maximum advantage.” Feng continued, “They are addicted to that sense of power. Sometimes a drug addict can’t be stopped.”
While the various legal debates over federal action on partisan gerrymandering continue, at state and local levels, there’s been significant progress. One of the primary ways that states have taken the reins is through developing independent redistricting commissions. In the 2018 midterms, both Colorado and Michigan passed ballot initiatives that allowed the creation of independent redistricting commissions, joining California and Arizona as the only four states in the country with truly independent commissions. In fact, Chief Justice Roberts explicitly pointed to the initiatives in Colorado and Michigan as evidence that this issue was slowly being resolved outside of the federal judicial system.
In Colorado, the push for redistricting reform was spearheaded by “tri-partisan” coalitions of Republicans, Democrats, and independents. This coalition, unified under the banner of Fair Maps Colorado, was partially created by Kent Thiry, the CEO of DaVita Inc. and a self-described “fierce independent.” A longtime leader at the forefront of this issue, Thiry explained in an interview with The Politic how Fair Maps Colorado created and campaigned for the ballot initiatives that eventually formed the new independent redistricting commission.
“Modifying our sacred democracy in order to allow it to adjust to emerging realities in the new world is not a new thing and has been an essential step in the past and it’s essential again now,” Thiry asserted as rationale for his advocacy of the commissions.
However, for Thiry, one of the greatest challenges was to get to the tri-partisan coalition in the first place with similar Democratic-led and Republican-led ballot initiatives competing against each other at first. But Thiry discussed how he found consensus between the two warring factions by hosting sessions between all three sides where they talked out “element after element of their proposals.”
“They all realized that, in fact, the other side also cared about fair elections, also believed that increasing polarization in America’s legislatures was bad for the country, and also were willing to make partisan compromises to create a truly balanced bill.” Thiry explained.
For Thiry, what made the difference was simply being able to “get the two sides in the room” and engaged in serious conversation long enough to “realize that true healthy compromise was possible.”
With the coalition created, Thiry and his colleagues set out to create a proposal for the potential initiative. Thiry discussed the strict limitations on partisanship such as creating stringent standards for potential appointment to these commissions or the prevention of former lobbyists and special interest groups from holding any influence.
“We think it’s pretty much equivalent to plane safety at this point where there’s so many checks and balances you can have hundreds of elections and no one can distort the true process.” Thiry continued.
Ultimately, the tri-partisan commission of Fair Maps Colorado was a huge success, drawing support from all branches of the state government as then-Governor John Hickenlooper (a Democrat), then-House Speaker Crisanta Duran (a Democrat), and then-Senate President Kevin Grantham (a Republican) all supported the measure. The measure passed in 2018 with 71% of the vote. For Thiry and many others, this case could represent a path forward for the country at large.
“I think too often in other states, the battle lines get set and there is just not enough investment of time, sweat, tears and effort to explore compromise proposals with the right engagement and leadership,” Thiry said.
Similarly, in Michigan, a grassroots movement formed the organization Voters Not Politicians to push for the ballot initiative, drawing national attention. Katie Fahey, founder of Voters Not Politicians and Executive Director of The People, created the group in the aftermath of the 2016 election.
“I remember learning about [gerrymandering in school] and raising my hand and saying ‘if we know about it and that it’s broken, why aren’t we doing anything about it’ and getting the response: ‘oh, it’s just been this way for a really long time,’” Fahey said in an interview with The Politic. “It was always a side note. We can see politicians manipulating the maps and that was just the end of the story.”
Gerrymandering had long been an issue of concern for Fahey, and she posted an innocuous Facebook post about the subject matter, asking if there were others who were interested in helping her fix the problem. Before she knew it, the post had spread across social media and Voters Not Politicians had become a reality.
“If there’s one thing [people] can agree on it’s that we’re all frustrated with the state of politics,” Fahey said, “[But I learned] there are thousands of people who are frustrated enough that they want to go and do something about it.”
Fahey and the organization held town halls across Michigan, trying to hear from voters what they thought the redistricting process should be like.
“When we asked ‘who should draw the lines?’ [voters] said, ‘definitely not politicians.’ Even more people said they didn’t want lobbyists or special interest groups involved either.” Fahey further explained, “there was a ton of focus on transparency. They didn’t want anything behind closed doors. They wanted all the information public.”
Voters Not Politicians canvassed across Michigan, visiting rural parts of the state where voters admitted they felt “left out and left behind.” Through that process, Fahey, like Thiry, also noted the nonpartisan nature of Voters Not Politicians’ efforts.
“People wanted different political perspectives at the table. Even if 70% of people voted for one party or the other, they still felt like it was really important for there to be representation of different parties there so that everyone’s voices would be getting heard.” Fahey continued, “Since this is our constitution, we all matter equally in helping to decide [what’s in] it.”
Fahey’s proposal focused around representation over other factors, she found that most people wanted symmetry, the fact that “if 60 percent of the population voted one way, 60% of their representation should be that way.”
Ultimately, Fahey’s proposal reached the ballot, surviving multiple lawsuits aimed at keeping it off the ballot. Voters Not Politicians collected 425,000 signatures for the initial proposal and on election night, the measure was approved with 61.27 percent of the vote.
“I was waiting for someone else to come fix it, whether that’s a politician, or another group of citizens, or another special interest group,” Fahey reflected, “But now I know, that to create what we created, it could’ve only come from the citizens. And honestly, that’s what it should be.”
In addition, in California, Feng was central to the effort to establish the redistricting commission there. In her words, in 2000 and 2001, she was “organizing communities up and down the state of California to participate in the redistricting process.” California had a public hearing process to help determine the new lines but Feng states that they were simply “a dog and pony show,” and that “the legislature would go behind closed doors and draw the lines that they really wanted.”
Through her work, Feng also found that issues of race still remained intertwined with partisan redistricting. As she explained it, legislators had “a sense of political ownership of constituents who had been dehumanized into becoming just political pawns.”
“For Democrats, their general strategy whenever engaging in partisan gerrymandering [is] to take minorities, who tended to vote very loyally with the Democratic Party, and sprinkle them as much as possible through multiple districts. And Republicans [are] always trying to consolidate those minority populations…to minimize their ability to elect their candidate of choice,” Feng said, “and this is the game that was played…. But in all cases these decisions are being made not for the benefit of that minority community, but for the benefit of the partisan power in control.”
Beyond broad strokes, in her efforts to ensure fair redistricting, Feng also had personal encounters with the intersection of race within partisan gerrymandering.
“During 2 weeks of closed door sessions,…I got a phone call from a particular state senator who told me: ‘Kathay, you are not going to put another f-ing Asian in my district.’ Only she didn’t [censor] herself,” Feng elaborated.
These broad electoral reforms have created vigorous debate however. Henderson detailed how he was “skeptical” of many of the proposals, stating how “any institutional device that solves one problem creates other problems.” On independent commissions, Henderson explained how “there’s not any credible evidence that these independent commissions are going to do a whole lot of things that reformers want them to do” since “it’s not clear that they’ll take the politics out of the process.”
“What is clear is that you’ll take the politics and subsume it under an alleged nonpartisan process in which people’s biases are going to be there, but unobserved,” Henderson elaborated, “Nobody is nonpartisan but when you don’t have partisan labels, they can act in a partisan way without any input or accountability.”
Henderson’s point has been considered by many reformers, with expansive restrictions being put in place in order to prevent partisanship from seeping into the commission and maintain the independence of such institutions. Henderson himself elaborated that while he has doubts, he is still “excited to see these initiatives” since ultimately reformers will “get better data.” Furthermore, Henderson states that the move is a step in the right direction, saying that “nonpartisan commissions are not going to be as partisan as legislatures were.” In Henderson’s view, the most fair method is to “produce maps via a simulation,” but that method is also, in his view, the most improbable since it would be unrealistic.
“You say: ‘here are all the things the simulation has to consider, here are all the things it can’t consider.’ You draw a whole bunch of maps and then randomly select them until you identify a map that is neutral with respect to all those considerations,” Henderson explained, “if partisanship is never included…. Then you have the most impartial map possible.”
However, Fahey personally disagreed with this viewpoint.
“A lot of people like to say, “Oh, some computer can just do this for us.’ [But] when it comes to representation and what that looks like,…any change we make impacts people who will be alive in 30 years, 40 years, 50 years,” Fahey said, “So writing the law for this needs to be…able to be adaptable for the people living at that time and what they want to prioritize. If we completely remove humans from that process, then we’re more focused on population and geography over the concept of representation.”
Even as reformers debate their next steps, the 2020 Census rapidly approaches on April 1. The fight to create independent commissions now moves towards changing states’ redistricting methods at the ballot box in November and beyond.
“There is…a hunger among most Americans to try to change the process because they see it as fundamentally wrong and broken,” Feng said, “in 2020, states like Oregon and Nevada and possibly…states like Nebraska, Oklahoma, Arkansas, North Dakota, and South Dakota may all be [bringing] ballot initiatives to create [independent] redistricting commissions.”
However, in the meantime, electoral reform advocates continue to move forward. State actors like Thiry and Fahey both continue their advocacy, with Thiry working towards establishing ranked choice voting systems in Colorado and Fahey leading The People, a nonprofit focused on pushing for greater democratic reforms. In the same vein, national actors like Feng with Common Cause and Wolf with the Brennan Center for Justice, continue to pursue litigation in order to overturn unfair maps. These actions are only the beginning of a long battle for reformists. It’s clear that the fight over partisan gerrymandering represents only a sliver of a broader and complicated issue.