Justice John Paul Stevens's fiercely modest judicial method
Supreme Court can no longer dodge decision on partisan gerrymandering
The U.S. Supreme Court has spent more than 30 years debating whether it should put some rules in place to stop partisan gerrymandering. In those decades, justices have come and gone, and politicians have used the absence of legal limits to unleash some of the most partisan maps in history.
But one thing has remained constant: The justices' fear of opening the door to a flood of court fights over election maps if the court strikes down any of them.
The court has no reason to be afraid. Two cases to be heard next week - one out of North Carolina and one out of Maryland - give the justices a prime opportunity to address the worst abuses of our maps without foisting hundreds of more cases onto the court's calendar.
The fear of an onslaught was on full display last year in a challenge to Wisconsin's state assembly map. During oral arguments, Chief Justice John Roberts worried that if the court threw out the Wisconsin map, "there will naturally be a lot of these claims raised around the country." This would require the courts, Roberts continued, to "decide in every case whether the Democrats win, or the Republicans win," something "[t]hat is going to cause very serious harm" to the court's "status and integrity."
But North Carolina and Maryland involve two of the most extreme partisan gerrymanders Americans have ever seen.
In North Carolina, Republicans have repeatedly won 10 of 13 seats in the state's congressional delegation this decade, despite the state's status as one of the most electorally competitive in the country. This is no accident. Since Republicans swept into power through the 2010 Tea Party wave, they've had total control over the redistricting process. They've used their power to capture and cement their 10 seats, first, through racial gerrymandering, carefully packing African-American voters into a few districts to dilute their voting power. And when the court called them out for racial gerrymandering, they did it through partisan gerrymandering, using elections data and high-powered computers to create a map that's systemically skewed against Democrats.
The Republicans' latest partisan gerrymander in North Carolina has been so effective, it has even held through the 2018 blue wave.
Aggressive statewide gerrymanders like this - where one party's seats are maxed-out and locked-in despite radical swings in election results - are rare. They popped up roughly a half-dozen times in congressional maps this decade (including Maryland) and about a dozen times in state legislative maps.
Even rarer, however, are extreme gerrymanders where the politicians are so blatant about their plot. In drawing the new map, North Carolina Republicans shamelessly flaunted their intent to maximize and secure their seats. Republican state Rep. David Lewis, the lawmaker in charge of the redistricting process, openly proclaimed on camera that the map was a "political gerrymander" and that the Republicans' goal was to "draw [it] to give a partisan advantage to ten Republicans and three Democrats." Even the notorious Wisconsin gerrymander that the Supreme Court punted on last term wasn't this flagrant.
Creating anti-gerrymandering rules that closely track the facts of cases like this will allow the court to outlaw the exceptional abuses of our maps while limiting the total number of cases it will get every decade after each census.
The court, of course, could go further. But addressing even just the pernicious abuses seen in North Carolina and Maryland would be a significant win for voters looking for legislatures that are more representative of, and accountable to, them. It would also be a win for the court and its docket.
What's more, it would protect the court's status with voters. Recent polls show that most Americans - across party lines - want the court to step in to put an end to gerrymandering. If the court doesn't act even in the face of the extreme facts in North Carolina and Maryland, its risks appearing more - rather than less - political.
Rulings striking down the North Carolina and Maryland maps also will send a strong message to power-hungry politicians that trying to entrench their power isn't tolerable - and none too soon. Now, everyone has the playbook for creating extreme partisan gerrymanders, as well as the piles of voter data and powerful computers to put that playbook into action. The relatively rare gerrymandering problems of this decade stand to spread throughout the country, appearing wherever one party has total control over redistricting.
The real question for the court is no longer whether it can afford to step in. Instead, the question is whether it can afford to stay out. The answer is no. A new round of map-drawing is looming in 2021. Gerrymanderers continue to perfect their sinister strategies in back rooms around the country.
Time is running out before their extreme maps become the norm.
Thomas Wolf is counsel in the democracy program at the Brennan Center for Justice at NYU Law. The Brennan Center has filed an amicus brief supporting the plaintiffs in the North Carolina and Maryland cases and calling for a ruling that sets a legal standard for gerrymandering.