15
Sat, Jun

The Supreme Court Just Created a Safe Harbor for Partisan Gerrymandering

STATE WATCH

GERRYMANDERING - Last week, the Supreme Court’s supermajority of six highly conservative justices issued a ruling weakening voting rights laws in Alexander v. South Carolina NAACP. Consider it the opening bugle blast on what could be a dismal season of rulings from the high court. 

The case is dense with details and doctrine. Here it is in a nutshell: South Carolina’s Republican legislators drew congressional district maps in a way that diminished the influence of Black voters in choosing a representative. The state denied accusations of racial gerrymandering, which is still (theoretically) illegal. No, South Carolina said, this was good old-fashioned partisan gerrymandering, a quaint and cherished part of our political system. It’s the American way—the founding fathers did it! To this implausible argument, the Supreme Court assented. 

How to parse this ruling?

If a gerrymander benefits white (Republican) voters, that’s illegal... but if the same map can be said to merely benefit (white) Republicans, then federal courts cannot touch it.

The first way to understand it, and I hope you’re sitting down: This ruling is good for Republicans. Increasingly that’s the surest way to forecast the Court’s output. Justice Samuel Alito, easily the most predictably partisan justice in recent decades, wrote the decision. 

Samuel Alito always flies the Republican flag right side up. 

But that’s not all. This ruling tilts governance and politics toward white voters. How so? The odd parsing of the difference between partisan and racial gerrymandering is more than lawyerly sophistry.

In a series of cases decided over decades, justices had struggled to craft a “judicially manageable standard” to redress partisan gerrymandering. In 2019’s Rucho v. Common Cause, the court decided to abandon that effort altogether. Chief Justice John Roberts’ cynical majority opinion declared partisan gerrymandering claims “nonjusticiable,” meaning federal judges were barred from deciding them no matter how egregious the gerrymander. 

Inconveniently, it was still illegal to draw district lines with the intent to create a racial majority. This left judges in a bind. Racial gerrymandering can look a lot like partisan gerrymandering in places segregated by race where communities of color have distinct political preferences.

Last week’s decision in Alexander, with its broad safe harbor for partisan gerrymandering, effectively settles that problem at the expense of voters of color. Gerrymanderers only have to proclaim an unfair map partisan (yay!), not racial (boo!). If a gerrymander benefits white (Republican) voters, that’s illegal... but if the same map can be said to merely benefit (white) Republicans, then federal courts cannot touch it.

This ruling can be understood, too, as part of the Supreme Court’s 15-year campaign to prevent the strengthening of our democratic institutions. Often that involves undoing the work of elected lawmakers. Citizens Unitedreversed a century of campaign finance laws and led to a flood of even bigger money in American politics. Shelby County v. Holder in 2013 and Brnovich v. Democratic National Committee in 2021 shredded the Voting Rights Act. This ruling further constrains the reach of that landmark law. 

We can pine for better doctrine and shout for better judges, but there’s a better solution: Congress should act. The Freedom to Vote Act, among its other robust provisions, would ban partisan gerrymandering in congressional elections nationwide. (It would thus avoid the tilt that comes when courts in Blue New York are far more aggressive about striking down maps than in Red Texas or Florida, for example.) The John R. Lewis Voting Rights Advancement Act would restore the strength of the Voting Rights Act. Voters, too, have power. In Ohio, citizens are poised to consider a ballot measure in November that would create one of the country’s strongest nonpartisan redistricting commissions. 

You know who blessed these efforts to redress the Supreme Court’s partisanship? The Supreme Court itself. In Rucho, Roberts lauded Congress’s power to act. He pointed to the proposed Freedom to Vote Act as proof that “the Framers gave Congress the power to do something about partisan gerrymandering in the [Constitution’s] Elections Clause.” He also pointed to state ballot measures as another way to protect democracy. And we can reform the Supreme Court itself through measures including an 18-year term for justices.

We grow used to the idea that every spring, we wait for nine unelected government officials with lifetime jobs to tell us what kind of country we are going to live in. Elections should serve this purpose, and we the people should do the telling. This is, as journalist Dahlia Lithwick puts it, a form of learned helplessness. Everyone whose blood boils about tales of Samuel Alito’s extremism should be just as exercised about the radical rulings that regularly bear his name.

(Michael Waldman is President of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice. This article was first published in CommonDreams.org.)