SCOTUS Refused to Take On Partisan Gerrymandering. Time for Legislators to Step Up

Last week, the Supreme Court delivered some bad news for American democracy. In a 5-4 opinion, the five justices in the majority found that partisan gerrymandering was an issue “beyond the reach of the federal courts.” In contrast, Justice Elena Kagan wrote on behalf of the four dissenters that the partisan gerrymanders at issue “debased and dishonored our democracy” and “deprived citizens of the most fundamental of their constitutional rights.”

The good news is that gerrymandering can still be fixed — by state legislatures or by Congress. States currently determine how all districts are drawn, but Congress could also set standards for federal districts, because the Constitution grants Congress wide latitude to regulate federal elections. In other words, the Supreme Court’s decision, though lamentable, is not the last word in the fight against gerrymandering. 

This is fortunate, because gerrymandering is a serious problem. Dubbed a “a legalized form of vote-stealing” by a strategist who helped partisan politicians manipulate electoral maps, gerrymandering is when districts are arbitrarily drawn to unfairly favor certain politicians or political parties. These distorted districts can lead to the passage of laws that the public does not support. In short, it’s a practice that undermines democracy. 

In recent years, advances in map-drawing software have made gerrymanders worse, leading to greater unfairness in both state legislatures and the House.  For example, on average, from 2012 to 2016, the Republican Party gained 19 additional House seats in each election because of districts biased in their favor. In fact, dozens of House seats were impacted during these years by gerrymandering by both parties, but the Republican Party had an upper hand because they controlled more state legislatures when district were last drawn. 

Had the court decided differently, many of these gerrymanders could have been undone, and politicians would have had to curb their gerrymanders going forward. But now it’s time for Congress and state legislatures to carry the baton. They can fix gerrymandering for good by following a few common-sense steps. 

Perhaps most obviously, politicians shouldn’t be allowed to draw their own districts, plainly a fox-guarding-the-henhouse situation. For this reason, states such as California and Michigan have empowered independent, citizen commissions to draw the districts instead. Every state should follow their lead. 

Second, these independent commissions should be required to draw “voter-determined districts” — districts where the percentage of seats that each party is expected to win matches the percentage of votes that they received in recent elections. For instance, in a state where 50 percent of voters support Republicans and 50 percent support Democrats, about half of the districts should be Republican-leaning and about half should be Democratic-leaning. In some states, this can’t be done perfectly because of the number of representatives and the distribution of voters — but within reason, commissions should draw the most representatives districts that they can.

Third, districts should be drawn so that communities of color get their fair share of representation. Congress, and particularly state legislatures, don’t remotely reflect our national diversity, in part because of a long legacy of discrimination and racially-targeted gerrymandering. Part of the solution is for commissions to draw more districts — indeed, as many as they can — that allow communities of color to elect representatives of their choice. 

It should come as no surprise that voters overwhelmingly support ending gerrymandering. In one poll, two-thirds of Americans said they would support a Supreme Court ruling that would result in districts “with no partisan bias whatsoever” — even if that meant their preferred party would lose seats. In the words of one Republican pollster, “Freely choosing their representatives is an issue of deep principle for voters of all political stripes.”

Of course, politicians often benefit from the status quo — but these polls don’t leave them with much excuse for inaction. And fortunately, many are championing the cause. The House passed a bill, the We the People Act, which contains a provision that would require federal districts to be drawn by independent commissions. A range of political leaders have made ending gerrymandering a signature issue — from former President Barack Obama, who started the National Democratic Redistricting Committee with his former Attorney General Eric Holder, to former California Gov. Arnold Schwarzenegger, who wants to “terminate” gerrymandering.

With the 2020 round of redistricting right around the corner, this advocacy is not a moment too soon. Now that the Supreme Court has decided not to step in, it’s up to every citizen, and to our political leaders, to demand that voter-determined districts replace our current manipulated maps. 

Alex Tausanovitch is the director of campaign finance and electoral reform at the Center for American Progress, and author of the recent report “Voter-Determined Districts: Ending Gerrymandering and Ensuring Fair Representation.”

Morning Consult