Supreme Court: no judicial remedy for partisan gerrymandering

My quick take at Cato:

A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.

Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.

If partisan gerrymandering is a substantial evil worth fighting – and I believe it is – we should now get serious about finding that remedy through other means….


  • After the frequent battles trying to reach a Goldilocks solution to racial gerrymandering that can be written down as a rule — pay attention to race but not too much, I understand the partisan gerrymandering decision. Any decision stating that a court can find partisan gerrymandering will result in the Court spending decades attempting to define allowed and disallowed redistricting as politicians find every unintended consequence of the latest set of rules.

    Better to leave it to states to determine. This may see a move toward “non-partisan” redistricting commissions but I predict partisan bias will be (and likely has been) claimed for these allegedly non-partisan groups.

  • citizen “voting” is supposed to be the primary remedy for controlling wayward legislatures.

    but we all know that citizen-voting never significantly changes the government system status quo …due to a rigged system (e.g., Gerrymandering) controlled by the existing government.

    Supreme Court is not some virtuous independent agency to control government excesses — it is an integral part of that government status quo … exercising far more arbitrary political power than citizen-voting.

    SCOTUS Justices are merely ‘politicians’ drawn from the same political class as Congressmen. Trusting SCOTUS politicians is a major mistake.

  • Conservatives who see this decision (Constitutional authorization to gerrymander) as a victory may live to regret it.

    (1) It invites Democrats to write a sharp-elbowed, hyper-partisan version of a “voting-rights act” in 2021, should they win both Congress and the White House in 2020. The previous bipartisan “voting rights act”, written to protect Black voting rights in recovering Jim Crow states, established a 14th Amendment precedent allowing Federal intervention in State elections.

    (2) It is likely to increase the partisanship of State Supreme Court elections in States (eg Wisconsin) where a popularly elected governor is blocked by a legislative “majority” elected by an obvious minority of the Statewide vote.

    (3) It invites violent and disruptive protests if the normal liberal come-back, “plan to win the next election” looks forclosed by a rigged game.

    Senate Republicans should invite House Democrats to negotiate an anti-gerrymandering civil rights bill both sides can live with.

    States could be allowed leeway to experiment with methods to curb gerrymandering, eg non-partisan commissions, guidelines against ignoring county, town, and ward boundaries, etc. I suggest a State offer a popular vote between reapportionment plans offered by the largest and second-largest legislative coalitions. The weaker coalition would have every motive to offer an honest and sensible plan, since otherwise voters would ignore them.

    • 1) There is a parallel partisan gerrymandering case from Maryland, a Democrat controlled state.

      2) I fail to see how SCOTUS getting involved in an issue that has no objective non-partisan solution is preferable to what you are warning against here.

      “Senate Republicans should invite House Democrats to negotiate an anti-gerrymandering civil rights bill both sides can live with.”

      Turning partisan gerrymandering into a civil rights issue will end up being a solution no one can live with.

      “States could be allowed leeway to experiment with methods to curb gerrymandering, eg non-partisan commissions..”

      They already have leeway to do this. several states already use such commissions.

      “guidelines against ignoring county, town, and ward boundaries, etc.”

      Requirements that all districts be as close to equal population as practicable likely makes such a guideline unworkable.

  • It’s almost like the real problem might just be having districts at all, especially when just one person represents each…

    • Perhaps. However, eliminating US House of Representatives districts will require a constitutional amendment.

      The way the membership of the House is defined in Article 1, requiring that there be a rep for every x population (where X is set by statute by Congress). It has been long held that this means that each Rep represents those x people, not the entire state, which pretty much mandates election by district.


      A number of states set up their state legislatures as mirrors of the US Congress, with a bicameral legislature and one side elected by equal population districts and the other side elected at large.

      However, between 14A, the various other voting rights amendments and the Voting Rights Act, the US Supreme Court ruled that states were not allowed to have state legislators elected at large or by geographic districts not based on equal population.

  • computers are the solution… Just havem decide based on number of voters without any reference to gender, race, religion, etc, etc , etc. There are this many voting age people distributed as follows, divide into equal portions based on population and area as possible for second criteria. GIS and soforth, should be relatively simple to implement. The fed could even produce the software… 😀