• The U.S. Supreme Court ruled that gerrymandering cases should not be decided by federal courts, as they are a political question. 
• The nature of partisan gerrymandering means that legislative challenges to existing gerrymandering are likely to fail; leaving questions on how to challenge gerrymandering moving forward. 
• Michigan’s new apportionment commission, created by Proposal 2 of 2018, will serve as an example of how citizens can challenge gerrymandering in the future. 

Today, the U.S. Supreme Court issued its final ruling on a major gerrymandering case. Overturning existing court precedent, the Court ruled that partisan gerrymandering claims posed a political question, and were thus outside the reach of the Courts. 

What does the ruling mean?

The Court’s ruling in the North Carolina-based Rucho v. Common Cause argues that partisan gerrymandering is a question best resolved by the political branches of government. Federal courts attempt to stay out of issues that are primarily political in nature as a means of maintaining separation of powers; politics is left to legislators, while courts rule on matters of law – constitutional law, in the high court’s case. As recently as Vieth v. Jubelirer (2004), however, the Court had upheld that partisan gerrymandering claims could be resolved by federal courts. Today’s ruling is a break in that precedent.

The decision ends several other cases (Gill v. Whitford in Wisconsin, Benisek v. Lamone in Maryland, and League of Women Voters v. Benson in Michigan). For Michigan in particular, the Supreme Court’s decision has a significant impact in the short term. In League of Women Voters v. Benson, the district court had ruled that Michigan’s maps were an unconstitutional partisan gerrymander, and would have to be redrawn before the 2020 elections. The Supreme Court’s ruling means that the state will continue to use the maps drawn in 2011 for the next election cycle and state senators who faced the prospect of an off-cycle election in newly drawn districts can rest easy. 

This interpretation of partisan gerrymandering can have far wider consequences. By its very nature, gerrymandering distorts the electoral process in ways that can alter the legislative process. By taking the stance that gerrymandering is a political question, it means representatives elected under biased political maps are the ones responsible for deciding future maps, and the only way the electorate can hold legislators accountable is through elections using those maps. In effect, while state legislatures may be scrutinized by their state courts, and still must work within the confines of the Voting Rights Act, the Supreme Court’s decision means federal courts are not able to intervene based on partisan bias. 

How can gerrymandering be limited now?

While Michigan is affected by the Supreme Court’s decision in the short term, over the long term the state (and others such as Arizona and California) could serve as a test case for limiting gerrymandering. Beginning in 2021, Michigan’s maps will be drawn outside of the legislative process. As a result of Proposal 2 of 2018, the state’s political districts will be drawn by an independent citizens commission, with self-identified Democrats, Republicans, and voters who do not identify with either party. This removes the inherent conflicts of interest in the map-making process, and the design of the commission requires political buy-in from each of these groups to complete the process. 

This is not a panacea; only 18 states allow for constitutional amendments like Proposal 2 via ballot initiatives. In the states that do not allow initiated amendments (and even some that do), challenges to gerrymandering could turn to state courts. In 2018, Pennsylvania’s Supreme Court overturned the state’s congressional districts, arguing that the maps contradicted the Pennsylvania Constitution. The federal decision does not limit state courts from ruling that partisan gerrymandering violates state law, so it is possible that existing (or future) gerrymandering challenges at the federal level will shift to state supreme courts.

Because the distortionary effects of gerrymandering can alter electoral results in a way that benefits those in control of the process, and because federal courts have removed themselves from playing a role in monitoring the practice, the landscape of challenging partisan gerrymandering has changed. The success (or failure) of Michigan’s commission, as well as those established in California and Arizona, and the sustainability of Pennsylvania’s state Supreme Court decision, will guide other states in challenging gerrymandering moving forward.