Felix Frankfurter called redistricting a “political thicket” which the federal courts would do well to avoid. And, when the court did dive into redistricting issues in the 1960s, it did so to deal with equal protection issues that transcended politics, and to which there were no popular political solutions. Having entered the fray, the courts stayed in the thicket for the next 57 years.
The Rucho decision definitively takes the federal courts out of the partisan redistricting debate. The majority rejects the notion that there are “judicially discoverable and manageable standards” to be applied by the courts. It lays aside the argument that political gerrymandering rises to being an equal protection problem. Through these conclusions it sends the problem back to the realm of politics.
Those of us who crafted tests and standards for the court to apply clearly disagree with the argument that these standards are unmanageable. And, given the basic assumption that majorities should govern is foundational to American democratic theory, we also disagree that this is not a critical factor to consider in an equal protection claim. The scope of political polarization in the United States reaches from the local to the national level, making votes remarkably comparable from district to district regardless of incumbency.
The outcome is not surprising. The conservative majority has been signaling a retreat from aggressive federal intervention is representation issues ever since the NAMUDNO decision a decade ago. And that retreat will likely continue, including possibly narrowing the scope of application of Section 2 of the Voting Rights Act, should a challenge arise.
So, let’s instead consider what this means for reining in partisan gerrymandering. The High Court has sent the gerrymandering problem back to the states. By making this a political issue outside the purview of the federal courts, the only remaining recourse is either in the state courts, or through state politics. The former avenue was successfully pursued by plaintiffs in the commonwealth of Pennsylvania. But, to succeed requires a state constitution with provisions through which a claim might be pursued, and a state high court willing to rule against gerrymandering.
Lacking an existing standard or basis in the state constitution, voters might create such a standard, either through a general voting rights amendment, or via a constitutional amendment dealing specifically with redistricting. Herein resides redistricting standards amendments such as Florida’s Amendments 5 and 6 from 2010, and redistricting commissions such as Arizona’s Proposition 106 in 2000 and subsequent changes in several other states. But to achieve these goals requires a majority in the electorate willing to consider fairness to be more important than partisan advantage. This might be too much to ask a quarter-century into the era of partisan polarization.
The greater challenge comes in states where no mechanism exists for a popular majority to undo the will of the gerrymanderers. In Colegrove (328 U.S. 549 1946), Felix Frankfurter determined gerrymandering a political problem. The popular will of the people of Illinois could turn to politics and state questions for a solution. When the High Court overturned the Tennessee gerrymander in Baker (369 U.S. 186 1962), it was the lack of any political solution other than a gerrymandered legislature which helped fuel the equal protection claim. Tennesseeans had no political solutions available, so the courts were the only source of redress. Justice Roberts essentially tells disadvantaged parties, they must win to change things. Yet, they must win on a rigged playing field where only extraordinary effort or performance – such as wave elections –overcomes the impact of clever line-drawing.
The only question remaining is whether or not the states, in their partisan camps, decide to follow different philosophies of redistricting and representation at the state legislative and congressional level?