That history helps explain the Court's hesitation over the past three decades to rule on legal challenges to the discredited centuries-old practice of political gerrymandering. Better understood, however, history teaches that the Court need not hesitate — as it did last week, in two separate decisions. Instead, with constitutional resolve, the Court should follow the example from the 1960s and adopt a workable legal framework to force needed reforms onto an unwilling and self-interested political system.
The Court in the 1960s needed only two years to establish the now familiar rules that govern redistricting cases. Just one year after Baker v. Carr, Justice William O. Douglas wrote the 8-1 decision in Gray v. Sanders with its famous declaration that political equality "can mean only one thing — one person, one vote." One year after that ruling, Chief Justice Earl Warren wrote also for an 8-1 Court in Reynolds v. Sims (1964) that states with bicameral legislatures must apportion seats in both chambers on the basis of population, not geography. "Legislators represent people," Warren wrote, "not trees or acres."
The gerrymandering issue cries out for the same kind of constitutional clarity, but for 30 years now the justices have worried instead about how to fashion a "manageable" standard for courts to apply in determining how much politics is too much in the redistricting process. Ever since the first of the false-start gerrymandering cases — Davis v. Bandemer in 1986 — the Court has needed to hitch up its pants just as the Warren Court did instead of wringing its hands.
The Court could declare firmly that representative democracy can mean only one thing: people elect their representatives; the representatives do not get to pick the people they represent. And a democratic republic does not allow a political majority to rig the system today in a way that preserves its majority status into the future.
The districting plans challenged in two cases last week would be thrown out under that simple, easy-to-understand standard. But instead, with seeming partisan evenhandedness, the Court last week turned aside a Democratic challenge to a Republican gerrymander in a Wisconsin case and a Republican challenge to a Democratic gerrymander in a Maryland case. The partisan manipulation in both cases was blatant and extreme, but Chief Justice John G. Roberts Jr. led two unanimous decisions that sent the challengers away with nothing to show for their evident political injuries.
The Wisconsin case, Gill v. Whitford, rejected on the technical issue of legal standing, was a particular disappointment for political reformers, who thought they had the silver bullet needed to take aim against partisan gerrymanders. The plaintiffs showed that a Republican-controlled legislature and Republican governor had redrawn the state's 99 Assembly districts in a way that allowed them, through three election cycles, to gain solid legislative majorities significantly disproportionate to the party's overall vote totals in legislative races.
The plaintiffs had devised a parameter that they urged the Court to use as the "manageable" standard needed to determine when a political gerrymander goes too far. Their so-called "efficiency gap" calculated each of the major parties' "wasted votes" — that is, more votes than needed packed into a "safe" district and other votes "cracked" apart and scattered into the opposing party's districts. By showing that the Republican-drawn plan resulted in many more wasted Democratic votes than wasted Republican votes, the plaintiffs won a lower court decision invalidating the state map and ordering a new one to be drawn either by the legislature or the court itself.
A half-century ago, Warren steeled a nearly unanimous Court to confront the political evil of malapportionment. Roberts instead led a unanimous Court in ducking a political evil that, thanks to computer-drawn maps, bids fair to worsen in the next election cycle. To duck the Wisconsin case, Roberts found that the plaintiffs had failed to establish legal standing by proving that their individual districts were improperly drawn. In the Maryland case, Roberts' hand was evident in the unsigned opinion that found Republicans had been too slow in fashioning a freedom-of-association claim to challenge the total recomposition of what had been one of the GOP's few congressional districts in the predominantly Democratic state.
Encouragingly, Justice Elena Kagan showed the necessary constitutional resolve in a concurring opinion joined by three liberal colleagues but, unfortunately, not by the handwringing justice Anthony M. Kennedy. Kagan went along with Roberts on standing and may have helped influence him in giving the plaintiffs the chance to try their case again rather than throwing it out, as conservative justices Clarence Thomas and Neil Gorsuch urged.
The Court, Roberts declared, "is not responsible for vindicating generalized partisan preferences." Kagan disagreed. "Courts have a critical role to play in curbing partisan gerrymandering," she wrote. She also envisioned the possibility that the Wisconsin plaintiffs could better develop an "associational theory" for the case that would entail a different theory of legal standing and open the door to a statewide remedy. On that, not-too-sturdy reed hangs the hope of devising, after too long a wait, a judicial remedy for a political evil that the Constitution, properly understood, does not countenance.
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