By Franklin L. Kury
In my 2018 book on gerrymandering, “Gerrymandering: A Guide to Congressional Redistricting, Dark Money and the U.S. Supreme Court,” I wrote that judicial relief for those seeking reform is a “firm maybe.”
The U.S. Supreme Court has just shown the truth of this observation.
With the force of a guillotine, the high court decapitated gerrymandering reform efforts in the federal courts.
In its June 27 decision in the North Carolina and Maryland cases the Court ruled five to four that the federal courts have no power to hear gerrymandering cases. That is a political question better left to the states, it suggested.
What the court meant is that it will not provide a measurement standard to determine when redistricting of legislative seats has become partisan gerrymandering.
Redistricting of Congressional and state legislative seats after each federal census is required by the U. S. and state constitutions. Redistricting by itself is a neutral term. Gerrymandering, on the other hand, carries the conclusion that redistricting was done to give a significant advantage to those who did the redistricting.
How can it be determined that a redistricting plan has been gerrymandered? When that question came before the Court in the 2002 case of Vieth v. Jubelirer, the justices decided, also by a 5-vote, that there was no standard by which it could determine if Pennsylvania’s Congressional districts were partisanly gerrymandered.
Then-Justice Anthony Kennedy, one of the five, wrote that, while there was no measuring stick in 2002, he was open to considering one in a future case.
Seventeen years later, measurement standards – like the “efficiency gap” test – were presented to the court, but Kennedy had been replaced by Justice Brett Kavanaugh, who joined Chief Justice John Roberts in deciding that the question of gerrymandering is a political one outside of the federal court system’s purview.
The impact of the Court’s decision will be felt most painfully in states like North Carolina, Maryland, Georgia, Virginia, Illinois, Wisconsin and Texas. These are states that produced partisan gerrymandered districts because redistricting has been in strong one-party control.
In these states there is no relief through a citizens’ ballot initiative as there is in 26 states, or under the existing state constitution. The best hope for reform in these states was the federal courts under the “equal protection” provision of the 14th Amendment.
With that hope now gone, reformers in those states have no alternative to but to carry the efforts directly to their individual legislatures.
Pennsylvania is unique on this point. In its 2018 decision in the League of Women Voters case, the Pennsylvania Supreme Court invalidated the Congressional plan based solely on state constitutional law.
The U.S. Supreme Court declined to review the case because it does not review state constitutional questions.
In North Carolina, there was a case set for trial July 15 that seeks to invalid state legislative seat gerrymandering based on its state constitution.
The high court’s decision will also have no impact on states that have placed redistricting in the hands of an independent commission or approved a constitutional amendment to do so: New Jersey, Ohio, Michigan, Colorado, Arizonan, California, Hawaii, Idaho, Montana, and Washington.
Florida does not have an independent commission, but it does have redistricting guidelines in its state constitution that the legislature is obligated to use.
In seven states, gerrymandering is not an issue because those state have only one member in the U.S. House: Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming.
Of the 26 states with a citizens’ ballot initiative, only those listed above have used it to create independent redistricting commissions.
There are several lessons from the U.S. Supreme Court’s June 27 decision.
- Replacing Anthony Kennedy with Brett Kavanaugh demonstrates that who is on the court makes a huge difference in what the Court does.
- The same can be said of the Pennsylvania Supreme Court. Recent state elections gave that court a more liberal slant that made possible the League of Women Voters decision.
- Elections for state House and Senate seats are now more important than ever in the seven states listed above where the only chance for reform is through the legislature .
- Pennsylvania’s legislative seats remain critical, even though the state Supreme Court relied on solely on the state constitution. The Republican controlled legislature – because the plan is a bill – has the first draft of the 2021 Congressional map, albeit with a Democratic governor who can veto it. Challenges to the plan can be brougt in the state courts, but the outcome, as in the US Supreme Court, may be determined by who is on the on the court at the time. This is why Fair Districts PA is continuing its push for an independent commission.
The ‘”bottom line” from the U.S. Supreme Court’s decision on measuring gerrymandering is that from now on this is a matter for states on their own.
Each state is different. Reform seekers in each state will have to pursue their reforms through the legislature or state constitution. There is no relief to be had in a federal court.
A former state legislator, Franklin L. Kury, of Hummelstown, Pa., is the author of Gerrymandering: A Guide to Congressional Redistricting, Dark Money and the U.S. Supreme Court published in 2018 by Hamilton Books. Readers may email him at [email protected]