If you want someone to blame for the recent crisis caused by President Trump’s rush to force a gerrymander of Texas’ congressional districts, and the harried responses from governors in California, Illinois and New York, you can start with the Supreme Court.
In 2019, in Rucho vs. Common Cause, the group held, 5 to 4, that challenges to partisan gerrymandering present “a nonjusticiable ‘political question’” and thus cannot be heard in federal court. This was widely considered a terrible ruling at the time, and we’re just now starting to see the consequences.
Gerrymandering occurs when the party that controls a state legislature redraws its districts to maximize smooth elections and safe seats for its party members. The notorious practice isn’t new — it’s nearly as old as the U.S., having taken its name from Founding Father Elbridge Gerry, an early governor of Massachusetts. Despite finding the practice “highly disagreeable,” Gerry signed off on the drawing of his state’s districts in 1812 to help his party gain competitive seats in the Legislature. During this process, someone apparently remarked that one bizarrely drawn district looked like the salamander — and the name “gerrymandering” took hold.
In the March 26, 1812, edition of the Boston Gazette, the paper ran a cartoon of the district, caricatured by artist Elkanah Tisdale to introduce “The Gerry-Mander: A new species of Monster.”
For most of American history, those engaging in gerrymandering would choose between a handful of maps based on their predictions of which could yield them the greatest advantage. Today, computers can generate thousands of these clever geographical divisions, with leaders ultimately choosing the map that provides them the best chance of partisan success. Intricate algorithms and detailed data about voters allow these map drawers to engage in gerrymandering with surgical precision.
Rucho vs. Common Cause arose in North Carolina, which is basically a purple state these days; presidential elections are always close, and statewide votes for congressional seats are evenly divided between Democrats and Republicans. However, when Republicans gained control of the North Carolina Legislature in 2010, they crafted a plan to redraw the boundaries for the state’s then 13 congressional districts in their favor.
State Republicans hired longtime political consultant Thomas Hofeller to generate and evaluate roughly 3,000 distinctive maps, and then selected the one they believed gave Republicans the best chance of earning significant control over North Carolina’s House. In the 2018 midterm elections, Republican and Democratic candidates statewide each received roughly half of the votes, but Republicans won 10 of the 13 congressional races.
This, of course, isn’t unique to North Carolina. In Pennsylvania, across several elections, congressional races in districts drawn by a Republican legislature resulted in Democrats receiving between 45% and 51% of the statewide vote, yet winning just five of its 18 House seats.
In Rucho vs. Common Cause, a lower federal court found that partisan gerrymandering violated the Equal Protection Clause of the 14th Amendment (as well as the 1st Amendment and Article 1 of the Constitution). But the Supreme Court, in a 2019 opinion by Chief Justice John G. Roberts Jr., reversed this decision. The 5-4 majority held that federal courts “cannot entertain a claim” and suggested that the plaintiffs “must find their resolution elsewhere.”
But this was just wrong. Gerrymandering is nothing more than a method for rigging elections. The central precept of a republican government, as the Supreme Court itself once observed, is “that the voters should choose their representatives, not the other way around.” However, partisan gerrymandering infamously creates a system for representatives to effectively choose their voters. As a result, each voter does not have the same opportunity to influence the outcome of an election, which is antithetical to equal protection.
When the court first ruled on partisan gerrymandering, holding that federal courts could hear challenges to it, Justice Lewis Powell observed that “the boundaries of the voting districts have been distorted deliberately” to deprive voters of “an equal opportunity to participate in the State’s legislative processes.” Some voters will benefit and will have more influence in choosing representatives. For others this will be more difficult as their votes are diluted. That is inconsistent with democracy.
Even though districting is usually done at the beginning of each decade, right after the U.S. census, and even though Texas’ congressional districts were drawn just a few years ago, Trump and Texas Gov. Greg Abbott are trying to engage in redistricting for the sole goal of manipulating the composition of Congress. Trump, knowing the Supreme Court’s decision means that federal courts can’t stop it, has strongly urged the state to redraw its districts now to effectively create five more safe seats for Republican representatives.
Not surprisingly, states with Democratic governors and legislatures are now looking for ways to respond, including redrawing districts that create Democratic seats in Congress. But some of these states, notably California and New York, already adopted the desirable and seemingly bipartisan approach of having independent commissions draw their districts to eliminate the plague of gerrymandering. The question is whether they can and should also change this practice now to combat what Texas is trying to do.
There are many ways to end partisan gerrymandering. Congress could pass a law requiring that all states use independent commissions to draw the congressional districts. The Supreme Court could reconsider and overrule Rucho vs. Common Cause and go back to holding, as the law used to be, that federal courts can invalidate partisan gerrymandering. State courts can find partisan gerrymandering violates state constitutions.
But none of this is going to happen now, and there is nothing to stop Texas from its efforts to carve out five more Republican districts. States controlled by Democrats need to respond; unilateral disarmament never makes sense. The loser is American democracy. And the Supreme Court is to blame.
Erwin Chemerinsky, dean of the UC Berkeley Law School, is an Opinion Voices contributing writer.
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