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Politicians Can Pick Their Voters, Thanks to the Supreme Court
The justices said partisan gerrymandering, no matter how flagrant, is beyond the reach of the courts, imperiling the fairness of future elections.
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The Supreme Court on Thursday refused to serve as an arbiter for what counts as extreme partisan gerrymandering, opening the door for politicians of both parties essentially to pick their voters, disfavoring parties that are not in power. The decision is anathema to America’s democratic ideals.
Chief Justice John Roberts wrote in a majority decision joined by all four of his conservative colleagues that federal courts have no power to entertain claims that politically motivated map drawing violates the Constitution. In law-speak, such questions are “nonjusticiable” — judges have neither the authority nor a proper standard to weigh such claims. “In this rare circumstance, that means our duty is to say ‘this is not law,’ ” the chief justice wrote.
Justice Elena Kagan, reading a pained dissent from the bench, called the decision “tragically wrong” and expressed “deep sadness” over what the outcome will mean for the nation.
“Of all times to abandon the court’s duty to declare the law, this was not the one,” Justice Kagan wrote in her dissent, which was joined by her three liberal colleagues. “The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
The two cases that the Supreme Court decided — or, rather, refused to decide — had offered the justices an opportunity to declare that courts have a duty to safeguard American democracy, whichever side is trying to rig it.
In one case, Common Cause v. Rucho, Republicans in North Carolina were doing the rigging, creating congressional districts in such a way as to ensure that Democrats would be disfavored despite the electorate’s nearly 50-50 composition. In the other case, Lamone v. Benisek, Democrats in Maryland were responsible — only one district was involved, but as Justice Kagan noted, “what was once a party stronghold” for Republicans became a Democratic district with 66,000 fewer Republican voters than it had previously. In both cases, lower courts concluded that this gamesmanship violated the Constitution’s First Amendment and equality guarantees, among other protections.
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