- The Washington Times - Thursday, June 27, 2019

The Supreme Court ruled Thursday that partisan gerrymandering isn’t an issue for federal courts to police — but left a clear path for states or Congress to reel in the practice, if they wish to do so.

The 5-4 ruling disappointed Democrats and voting rights activists who hoped the court would create a national standard for how legislative maps are drawn and would rule out the kinds of tortured lines that let parties maximize their power by drawing districts virtually guaranteed to elect one party or the other.

Chief Justice John G. Roberts Jr., writing the majority opinion, said that while some of the crazier maps may be objectionable, line-drawing is the epitome of a political question, putting it in the realm of the elected branches and beyond the reach of the judiciary.

“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,” he wrote, joined by the court’s four other Republican-appointed justices.

While the federal courts can, and do, police racial gerrymandering — lines drawn to dilute the voting power of a minority — that is a matter of fundamental equal protection rights, the court ruled. Questions about which political party benefits from a map are much trickier and are best left to voters and their representatives to hash out, the justices said.

The four Democratic appointees dissented, claiming the principle of equal representation and warning of severe damage to democracy if lawmakers keep drawing maps that are virtually certain to pick which party wins or loses.

“They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government,” Justice Elena Kagan wrote.

Gerrymandering is named for Elbridge Gerry, one of the Founding Fathers who, as governor of Massachusetts, signed a redistricting plan that helped ensure his party retained power in elections and had one district shaped like a salamander. In the centuries since, gerrymandering has become a common practice for both Republicans and Democrats — and is a frequent target for both Republican and Democratic complaints when they are out of power.

As technology advances, the ability to target districts and control political outcomes has increased, and so have the legal challenges.

Before the Supreme Court were two cases. One involved a map drawn by Republicans in North Carolina, where Democrats hold just three of 13 U.S. House seats despite near parity in total votes. The other map was from Maryland, where Democrats drew lines in the last redistricting in order to ensure the defeat of a particular Republican.

Even the justices in the majority seemed wary of the extent of redistricting. Yet they said there is no easy way to spot the difference between normal line-drawing and excessive partisan gerrymandering.

That didn’t sit well with Justice Kagan.

“For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply,” she wrote.

She suggested one method she said would work: Courts could figure out what a map would look like if drawn without regard to party and then figure out how far each state’s map diverges.

“The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution,” she wrote.

Chief Justice Roberts said his ruling isn’t an imprimatur on political gerrymandering.

He said states are free to do their own policing and pointed to a 2015 ruling from the Florida Supreme Court that struck down the state’s map for running afoul of its constitution.

He also said Congress can step in with legislation.

“We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open,” the chief justice wrote.

House Democrats jumped on the opportunity. They said they passed a bill this year that would push nonpartisan redistricting commissions to draw congressional maps.

“Both parties have used the redistricting process for partisan ends; only through the mutual agreement and cooperation of both parties will this practice end,” said House Majority Leader Steny H. Hoyer, Maryland Democrat.

Ironically, Chief Justice Roberts singled out Mr. Hoyer in his opinion by pointing out that the majority leader once called himself a “serial gerrymanderer.”

The Senate, though, is unwilling to take up the House bill, said Majority Leader Mitch McConnell, Kentucky Republican.

“This is a solution in search of a problem,” Mr. McConnell said of partisan gerrymandering.

Karen Hobert Flynn, president of Common Cause, the group that challenged the North Carolina map, said the court’s ruling gave a “green light” to partisans across the nation to silence voters based on their political affiliation. She said Common Cause will sue in state courts and pursue other avenues, as Chief Justice Roberts suggested.

“Without a doubt, this is a challenging day for our democracy,” she said.

But J. Christian Adams, president of the Public Interest Legal Foundation, said the court made the right move by leaving the issue up to the states and Congress. He said the case was different from racial gerrymandering because race is a protected class under the Constitution while political party isn’t.

“The 15th Amendment gives federal courts the power to stop racial discrimination. The Constitution doesn’t give federal courts the power to pick partisan outcomes,” he said.

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