By Brad Kutner and Tim Ryan
WASHINGTON (CN) – Advocates fighting for nonpartisan changes to voting maps across the country were left frustrated and disappointed Thursday after the Supreme Court ruled 5-4 that it doesn’t have the power to rule on political gerrymandering cases.
Chief Justice John Roberts said in the majority ruling that his court has “no commission to allocate political power and influence in the absence of a constitutional directive” and must view the issue of carving up voting districts through the lens of the nation’s founders.
“To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities,” he wrote in consolidated cases out of North Carolina and Maryland.
Reaction from those fighting against political gerrymandering was strong.
“Today’s ruling empowers politicians with unlimited and unreviewable authority to distort the political landscape in their favor based on nothing other than their own political self-interest,” Floyd Abrams with the Institute for Freedom of Expression said in a statement.
Abrams had argued, like many others, that the First Amendment should ban such political tactics.
“It is an affront to the very notion of democratic self-rule,” he added.
Mike Gilbert, a law professor at the University of Virginia, said the decision finally locks the door on litigants making constitutional partisan gerrymandering claims in federal courts. The decision ties up a long string of cases that all ended with the court rejecting such claims without entirely blocking them out in the future.
“What’s different today is… this is the end, they’re finally saying we’re just not going to do it and we don’t have jurisdiction to do it, don’t bring us any more of these cases,” Gilbert said.
While acknowledging it is difficult to attribute the ruling to any one factor, he noted retired Justice Anthony Kennedy had long been willing to leave the door open a crack for future partisan gerrymandering disputes.
“It’s hard to think that if he were still on the court and Kavanaugh wasn’t, that this wouldn’t have come out differently,” Gilbert said in an interview.
For years, the guiding light for people seeking to draw the court into the partisan gerrymandering arena was Kennedy’s concurring opinion in the 2004 case Vieth v. Jubelirer. In that case, Kennedy said he would be open to courts hearing partisan gerrymandering cases if someone could present a “clear, manageable and politically neutral” method of judging such claims.
With the federal court system no longer an option to push back on partisan gerrymanders, Yurij Rudensky, counsel at the Brennan Center for Justice, said the focus shifts to the legislative branch. He said federal legislation, ballot initiatives and efforts to pass laws and amend state constitutions are all on the table for advocates going forward.
“The solution was always a policy-based solution, in terms of really striking at the core” Rudensky said in an interview. “The reality is the courts were never going to prevent bad maps from being drawn.”
He noted state courts still provide a potential legal path to invalidate partisan gerrymanders, as some states that have exactly the kinds of provisions in their constitutions that Chief Justice Roberts found lacking in the U.S. Constitution.
States like Wisconsin and Ohio had pending federal cases dealing with partisan redistricting. Thursday’s ruling means the Republican-leaning districts drawn in those states after the last census will stay in place.
Former Wisconsin Governor Scott Walker, who now heads the National Republican Redistricting Trust, hailed the decision.
“The battle to protect our country from Barack Obama and Eric Holder’s plan to hijack our elections now moves to the states,” he wrote on behalf of his group, which supports GOP-led redistricting efforts.
Chief Justice Roberts pointed to efforts undertaken by states to address gerrymandering “through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage.”
The option chosen by Virginians is a combination of a constitutional amendment with legislative input.
Brian Cannon, executive director of One Virginia 2021, a group advocating for a nonpartisan redistricting process, was disappointed by the high court’s decision but said he is optimistic for his state after the General Assembly took steps in February to put a nonpartisan commission on the ballot.
State law requires the measure to be passed by legislators twice before being put to voters, but until then Cannon has advice for states looking to take similar steps. He said the key to clean district maps involves three factors: an independent commission, clear rules for drawing lines and a fully transparent process.
States could also pass laws that require nonpartisan maps.
Pennsylvania, for example, already had a redistricting law on the books requiring contiguous and compact districts that take into account “borough, township and ward boundaries.” Democrats challenged GOP-leaning maps in state court and Pennsylvania Supreme Court ruled in their favor in early 2018, ordering a new map to be drawn.
Deepak Gupta, a principal at the law firm Gupta Wessler, wrote an amicus brief asking the Supreme Court to overturn the disputed maps in North Carolina and Maryland and was disappointed that it chose not to. He represented a group of mathematicians, law professors, and students who say they have developed a system to detect just how gerrymandered a state is.
In her stinging dissent, Justice Elena Kagan pointed to Gupta’s brief in noting just how gerrymandered North Carolina’s maps were, saying his process, which involves thousands to billions of simulations, showed a redraw could easily create one to three or more additional districts which would favor Democrats and level the playing field.
“Its math,” Gupta said. “Its disappointing, despite the availability of those techniques, that the court threw their hands up and said the federal courts are not willing to step in.”
Cannon, the Virginia activist, echoed that sentiment.
“This was a slam dunk the court had to take,” he said in a phone interview. “And they whiffed.”