The U.S. Supreme Court’s Gerrymandering Decision

2019 has been a blockbuster year for Supreme Court Decisions. The cases the high court has handed down this term touch on some of the most hotly debated topics of our time from religious rights cases to abortion rights cases, but none have a more far reaching impact on American life than the recent decision handed down in the case of Rucho v. Common Cause. This case was actually a decision handed down in connection with two separate cases, one from Maryland and one from North Carolina, that were centered around the same issue, partisan gerrymandering. 

By federal law, congressional districts are redrawn every 10 years following the completion of the national census, but the most interesting aspect of this process is that it is members of a state’s congress or a state’s redistricting commission that redraw these lines. Regardless of which party is in power in a particular state, the dominant party always seems to draw congressional districts that are almost guaranteed to vote for a particular party. Meaning, if republicans are in power, they will draw districts that are shaped in such a way that republicans will more than likely maintain control of that particular state by an overwhelming majority. If democrats are in control of a particular state, the district lines will be drawn in a manner that gives them the majority. As you can imagine, this leads to an unbalanced distribution of power in many cases. 

Our Gerrymandering Problem in the United States 

For example, in North Carolina, Republicans received 50.3% of the votes cast in the elections for the Federal House of Representatives, but of the 13 federal house seats that were up for election, 10 were won by the GOP. Meaning, 50.3% of the vote won the Republicans about 77% of the house seats up for re-election. In Maryland, the gerrymandering case revolves around one district, the 6th congressional district in Maryland to be exact. Here, Democrats changed the composition of this district from its original voter composition of 47% Republican voters and 36% Democratic voters to 34% Republican voters and 45% Democratic voters thereby ensuring, with a high degree of probability, that Republicans will never win this congressional seat, at least for the time being. 

The Basis Behind the Supreme Court’s Gerrymandering Decision

Clearly, this problem is serious, because it fundamentally changes and subverts how power is distributed in our country, but to really understand the basis behind the Supreme Court’s recent gerrymandering decision, you need to know about a little known case called Baker v. Carr 369 US 186 (1962). Baker was a redistricting case centered around the redistricting practices of the state of Tennessee. At the time the case was argued in 1961, the legislature in Tennessee had not reapportioned its districts since 1901, 60 years. Obviously, the population in Tennessee had changed substantially over that time period, and the effect of the state legislature’s failure redraw the congressional districts for the state based on the changes in its population was the dilution of votes on a large scale. However, this problem was purely a political problem, and under the rationale of the political question doctrine, the courts should not intervene in cases where the legislature is the judge of the issue at hand. 

The Impact of Baker v. Carr

You see, it is congress’ duty and responsibility to abide by the law and carry out certain legal functions such an impeachment proceeding and yes, redistricting. At the time when Baker v. Carr was being argued, there were multiple justices that felt that the issue in Baker was a political question, and therefore, the Supreme Court should not intervene regardless of how bad the problem might be. However, the high court ultimately rejected this opinion and did intervene stating: 

“We understand the District Court to have read the cited cases as compelling the conclusion that, since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a “political question,” and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable “political question.”

 In the eyes of many, it was the opinion in Baker that marched the Supreme Court into the “Political Thicket,” and opened the doors to several cases centered around high profile political issues such as the decision handed down in Busch v. Gore.

An American flag background with a judge banging a gavel on a book, a person walking, and a bald eagle.

The Impact of the Supreme Court’s Gerrymandering Decision

However, despite the holding in Baker v. Carr and its predecessors, the Supreme Court took a substantially different stance in Rucho v. Common Cause holding that the gerrymandering cases from both Maryland and North Carolina both presented “Political Questions” and therefore, fell beyond even the Supreme Court’s jurisdiction. Specifically, the opinion for the court indicated:

Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (plurality opinion). In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Baker v. Carr,369 U.S. 186, 217 (1962)…….

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.

How will the Supreme Court’s Gerrymandering Decision Affect You?

The court’s decision essentially open the flood gates to a host of different gerrymandering schemes across the country, but gerrymandering will have some limits. The Supreme Court did place Congress on notice that it can and will weigh in on cases where a gerrymandered district has diluted votes, as was the case in Baker v. Carr, or cases regarding allegations of racial gerrymandering, but as was the case in both Maryland and North Carolina, there are many ways to gerrymander a district without diluting votes or creating racially gerrymandered districts. 

Moreover, the decision in Rucho v. Common Cause represents a fundamental shift in how the Supreme Court might view certain politically motivated cases. You see, many cases could be viewed through the lens of the political question doctrine, and if the high court takes a “hands off” approach to these cases, the impact on the way hot button legal issues are decided could change drastically. For example, if the Justices viewed the case of Busch v. Gore in the same manner as Rucho at the time when that case was decided, Al Gore might have been the 43rd President of the United States, so the overall impact, although unknown, could be far reaching. However, we will not know the overall impact this decision will have until more cases are decided by the Supreme Court under the precedent of Rucho v. Common Cause.

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