“Partisan gerrymandering is nothing new,” writes Chief Justice John Roberts at the beginning of his opinion in Rucho v. Common Cause. “There is no frustration about it either.” The question is what, if anything, federal courts should do about this. The answer endorsed by the chief justice of the Supreme Court and four other Republican-appointed justices, journalists report, is nothing.
In fact, judges have a very effective weapon at limiting, but not prohibiting, partisan districts, something we’ll discuss later. But first, let’s be clear that the chief judge is right about the history of the case. He is right to disagree with Justice Kagan’s suggestion in her dissent that partisan divisions have become much more common and effective in recent years.
The word “gerrymander” is a clue. It was named in honor of Elbridge Gerry, a delegate to the Constitutional Convention and fifth vice president of the United States, who in 1812, as a resident of Jefferson, Massachusetts, packed Federalist cities into one salamander-shaped congressional district. It was 207 years ago.
The fact is that once you get involved in having legislators elected by districts and once you have competitive political parties, how you draw district boundaries will matter, and any competent partisan will have a difficult time drawing them to maximum advantage.
The founders, following the example of the British Parliament, quickly opted against universal suffrage and proportional representation in the states – which are fully permissible under the Constitution – in favor of elections in geographically defined districts. And in 1842, Congress—perhaps influenced by the British Reform Act of 1832, which eliminated representation for uninhabited cities and gave it to growing industrial cities—required the states to create compact and contiguous districts of equal population.
In 1929, Congress repealed the latter provisions, and lawmakers’ refusal to update district plans to reflect demographic changes inspired lawsuits. The Supreme Court dismissed them in the 1940s, but ruled in 1963 and 1964 that congressional and legislative districts in each state must have equal population sizes. This requirement, barely mentioned in Rucho, has quietly operated as a severe limitation on politicians’ ability to gain partisan advantage through districting, and its arithmetic standard is easily policed by the courts.
As co-author of The Almanac of American Politics, I have closely followed state-by-state redistricting plans for over 40 years, dating back to the 1960, 1970, 1980, 1990, 2000 and 2010 censuses. Democrats have dominated the redistricting process . trials in the 1970s and 1980s, with little negative comment. Conservatives still yearned for population equality plans that favored agricultural districts. And liberals were delighted with the plans devised by California Rep. Phil Burton.
But liberals suddenly experienced shock and horror when Republicans dominated the redistricting process in enormous states like Texas, Florida, Pennsylvania, Ohio and Michigan in the cycles following the 2000 and 2010 censuses.
Changes in political demographics have helped Republicans there and elsewhere. Democratic voters are increasingly concentrated in central cities, a few nice suburbs and college towns; Republican Party voters are more evenly distributed throughout the rest of the country. Any population equality plan tends to work against a party that wins by 80-20 in a few districts and loses by closer to 55-45 in many others.
Justice Kagan expressed the frustration and – not a forceful word – rage of liberals. He portrays partisan divisions as fatally undermining electoral democracy. To someone who has closely followed the fate of redistricting plans over the past half-century—and who has seen the intentions of redistricting actors thwarted by shifting public opinion and political alliances—these complaints seem overblown.
Time and time again, aggressive partisan redistricting plans, from those of California Democrats in the 1960s to those of Pennsylvania Republicans in the 2000s and 2010s, have boomeranged. Despite Republicans’ redistricting advantage over the past two decades, Democrats won majorities in the House of Representatives in 2006, 2008 and 2018.
In any case, partisan redistricting will fade in the 2020 census cycle. Michigan, Ohio and Colorado have joined California, Washington and Iowa in creating redistricting commissions that purport to be nonpartisan (but which, as scholars at the Capital Research Center have shown, effectively lean Democratic). Florida’s referendum limits Republican redistricting there, and the 2018 gubernatorial election left fewer states with outright partisan control. From a partisan standpoint, redistricting in the 2020 cycle looks like crap.
It is therefore prudent to close the courtroom doors to trials that may result in biased federal courts by requiring judges to rule on cases “without any standard discoverable and manageable by the court.”
Michael Barone is a senior political analyst at the Washington Examiner, a resident fellow at the American Enterprise Institute, and longtime co-author of The Almanac of American Politics.
