Supreme Court decision could set off gerrymandering 'arms race'

Federal judges will no longer play the role of referee when the intensely partisan, once-per-decade fight over congressional mapmaking gets underway this year.

As a result of decisions by the Roberts Court, federal courthouses will be forced to turn away even the most egregious cases of partisan gerrymandering, which could make it easier for state lawmakers to lock in politically manipulated voting maps for the next decade. 

“Now that the Supreme Court has officially retreated from the area, they've set off what will likely be an arms race between the parties to gerrymander to the fullest extent they can in the states where they hold control,” said G. Michael Parsons, a scholar at New York University School of Law. 

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Gerrymandering has occurred in the U.S. since around the time of its founding. Some scholars say the practice even predates the 1812 event when Massachusetts Gov. Elbridge Gerry approved a partisan district that was so oddly shaped it was said to resemble a salamander, which, combined with his surname, produced the term “gerrymander.” 

The practice of drawing manipulated congressional and legislative districts for political advantage has continued since then with varying intensity, as voting boundaries are redrawn to account for demographic shifts following the once-per-decade census.

According to experts, however, the upcoming redistricting is likely to be even less restrained than in years past. It will combine a new degree of sophistication in map-drawing technology, high levels of partisan polarization and currently no legal recourse to fight partisan gerrymandering in federal courts as a result of decisions by the Supreme Court under Chief Justice John Roberts. 

“The Roberts Court has been a wrecking crew on voting rights,” said David Daley, an expert on partisan gerrymandering. “They really tilted the playing field away from voters and toward those who would manipulate maps for their own political gain.” 

Several measures in Congress, including the For the People Act, would ban partisan gerrymandering. But that effort is unlikely to garner enough support from Senate Republicans to overcome a GOP filibuster, particularly before the Census Bureau releases data to the states on Aug. 12.

Although both Democratic- and Republican-held state governments have undertaken the practice, most experts believe GOP legislatures stand to gain a greater partisan advantage through gerrymandering. 

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A new study by the liberal nonprofit Brennan Center listed four states with GOP-held legislatures — Georgia, Florida, North Carolina and Texas — as possessing the highest risk of extreme gerrymandering, with new voting districts that dilute Democrats’ voting power.

Those states could draw anywhere from six to 13 new congressional districts that heavily favor GOP candidates — which would be enough for Republicans to retake the House in 2022, according to findings from the Democratic data firm TargetSmart that were reported by the progressive outlet Mother Jones.  

Legal experts say the Roberts Court bears some responsibility for the lack of a robust federal check against the anti-democratic practice, particularly after the court’s 2019 decision in Rucho v. Common Cause.  

In a 5-4 decision along familiar ideological lines, the court’s conservative majority ruled that lawsuits over partisan gerrymandering raise a political question that is beyond the reach of the federal courts, handing a stunning defeat to voting rights advocates. 

“I think the Roberts Court's voting rights decisions have hastened democratic decline, and Rucho marks a particularly dangerous turning point because it officially sanctions the pursuit of partisan advantage as a permissible exercise of state power,” Parsons said. “Some justices have implied as much in prior cases, but Rucho's majority holding makes this explicit.” 

Daley, the author of two books including “Unrigged: How Americans Are Battling Back to Save Democracy,” said the country was about to face the “full brunt” of the Rucho decision in the upcoming redistricting. 

“The U.S. Supreme Court had the ability to do something about this in 2019. They not only refused, but they gave the politicians a green light and an unlimited speed limit as they head into this next redistricting cycle,” Daley said. “The lawmakers who are drawing these lines right now know very well that they will now be able to get away with the most aggressive maps of their dreams.”

To be sure, the courts will continue to have a role to play in the looming redistricting fight. At the federal level, for instance, it remains illegal to carry out gerrymanders based on race. 

According to Parsons, however, state lawmakers will be particularly careful to frame their map drawing as motivated by party interest, as a way to side-step federal litigation. 

“In the wake of Rucho I expect many states will pack districts quite aggressively and explicitly argue that they are doing so based on partisan affiliation and not race,” he said.

Here, another 5-4 decision by the Roberts Court removed another potential weapon against gerrymandering. The 2013 ruling in Shelby County v. Holder eliminated the Justice Department’s power under the Voting Rights Act to screen proposed maps in jurisdictions with a history of racial discrimination in elections.

“Now states can enact brazen partisan gerrymanders and not worry about the racial impact of the maps preventing pre-clearance,” Parsons said.

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Legal experts expect much of the fighting will shift to state courts. 

“In some states, it may be possible to bring lawsuits under state constitutional provisions, as happened successfully in Pennsylvania and North Carolina at the end of the last decade,” said Ned Foley, an election law expert and law professor at the Ohio State University. 

The constitutions of 30 states include some form of requirement that elections be “free,” according to the National Conference of State Legislatures. Those and similar provisions, at least in theory, could create avenues for challengers to sue over partisan gerrymandering. 

But in states where judiciaries that have been subject to, and in some cases shaped by, partisan pressure, courts may be hesitant to overrule a gerrymandered map. 

“If you're drawing these lines in Georgia, or Florida or Texas, are you really going to worry about your state's Supreme Court tossing them out?” Daley said. “You know, I think I'd be willing to run that risk.”

The Supreme Court’s decision in Rucho explicitly left open the possibility that Congress could step up to curb gerrymandering. As Chief Justice John Roberts wrote for the majority: “The Framers gave Congress the power to do something about partisan gerrymandering.”  

But with just over one week until the release of new census data sets in motion new map drawing, time is running out. 

The court “specifically invited Congress to act to address the problem,” Parsons said. “Hopefully, Congress accepts that invitation before it's too late.”