Elections matter, including the presidential election. And, the biggest reason it matters is because the winner gets to pick the United States Supreme Court.
On that note, five of those nine justices recently held that partisan considerations are a perfectly acceptable basis for drawing the voting districts upon which state and federal legislators are elected. In other words, the controlling party can draw the lines in a manner that intentionally benefits its candidates, and the opposing party has no legal recourse.
It should go without saying, this is a big deal. And the Court certainly would not have ruled this way had Hillary Clinton won the presidential election.
In 1812, the Governor of Massachusetts, Elbridge Gerry, signed a bill creating a partisan district in Boston that was so odd in its shape that it was said to resemble a salamander. Thus, was born the term “gerrymandering,” which describes the creation of partisan voting districts, often in very odd geographical shapes. (Anyone recall the Fayetteville finger?)
The practice is long-standing, pre-dating 1812, and is wide spread. Indeed, it has been utilized in countries around the world.
One of the questions surrounding gerrymandering is whether the U.S. Constitution allows for districts to be drawn largely, or totally, based on partisan advantage. On June 27r, in Rucho v. Common Cause, by a 5-4 margin, the Court effectively made it an acceptable practice when it chose not to interfere with congressional districts drawn in North Carolina and Maryland.
In Rucho, the North Carolina plaintiffs claimed the plan discriminated against Democrats and the Maryland plaintiffs claimed discrimination against the Republicans. The Court looked to the Elections Clause in the Constitution, which assigns authority over the electoral process to state legislatures, with oversight by Congress. The founders, the Court noted, were aware of electoral districting problems, yet chose to leave such issues to the states and Congress “with no suggestion that the federal courts had a role to play.”
The Court ultimately punted, if you will, by holding that partisan gerrymandering is not something for it to decide. Rather, it is a “nonjusticiable political question.” The use of this doctrine is rare, and is one us lawyers vaguely recall discussing in law school. Nevertheless, it means there is no legal recourse against partisan gerrymandering in the United States.
What are the implications of this holding? Most likely, it’s good news for Republicans.
Republicans have control of 30 of the 49 partisan legislatures in the United States. In 22 of those 30 states, the Governor is also a Republican, and that includes large population states such as Texas and Florida. After the 2020 census, state and congressional districts will be redrawn in all 50 states, and there is nothing to stop them from being drawn in a partisan manner.
That said, the fight likely isn’t over. Those who oppose partisan gerrymandering, whether it be based on policy or politics, are looking at ways to address it. This includes legislative efforts at the state and federal levels or, more likely, popular efforts to amend state constitutions to create independent commissions charged with drawing districts.
Strangely, by not getting involved in this particular electoral issue, the Rucho opinion will have one of the most significant impacts on the electoral process in our history. To be sure, it will greatly impact the outcome of future elections, and those things matter.
Editor’s note: Justin Allen is an attorney with Little Rock-based Wright Lindsey Jennings. The opinions expressed are those of the author.