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The Supreme Court struggles with partisan redistricting

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Solaman

How could the US supreme court fix this, since it itself is gerrymandered by successive partisan Congresses.
The Judges appear reluctant to handle it out of fear of upsetting the duopoly standoff their selection represents.
The US system is ossifying with age, venality and corruption that has now done for all three institutions of governance. It is incapable of reform as is.
What makes us think reverence for the SC is in any way justified.
With the advent of Trump, the ground prepared over decades, all the systems vaunted checks and balances have been shown to be most effective when untested. Turns out it wasn't the mechanisms of governance but the residual good will that held it together; absent that it fails ignominiously, with a whimper.
The current commander in chief has amply demonstrated that they can be immediately swept aside as mere window dressing, without account from a gerrymandered congress, that appoints SC Justices according to partisan leanings. What can be expected other than avoidance and kicking the can down the road?
The corruption is at the heart of the body politic and fatal to a democracy that is rapidly failing.
I would be so bold as to say the constitution is the reason for this, where as other democracies can change to suit updated circumstance and reform, this one is in an 18th century straight jacket that more mature democracies aren't constrained by.
They've given over the drafting of electorates to non political bodies and removed judicial selection processes from the houses of representatives, thereby insulating them from partisanship.
Like so many things in the US it seems the stumbling block to real progress and reform is the nations founding document.

norelius

The issue is not so much the actual partisan flavor of the districting as it is the gross overreach. Gains made by taking obvious advantage of representative victory only invite cycles of retribution years down the road. "Stealing above your station" has always garnered the attention of the powers that be. Here is the USA those "powers" are the electorate and their lawyers. Perhaps the Court could at least say something to the effect of "enjoy the spoils of electoral majority, but just don't overdo it." Such fuzziness would be a job creator for generations of lawyers, but may also give pause to those partisans even contemplating entering such an constitutional swamp.

Peace Love and Understanding

I do not believe the justices are sincere in their distaste for gerrymandering.

As stated earlier, we could implement a proportional representation system (which is the only way the principle of one person one vote can actually work). Partisan gerrymandering by state legislatures violates the 5th and 14th amendments. It is a government taking of political representation which is not an alienable right. It has produced vast distortions in political representation relative to what the actual population wants because the votes of people who live in cities count far less towards representation in Congress compared to those who live outside of cities. And most of the population of our country lives in cities now.

We are guaranteed by the Constitution and by common law to have our votes count roughly the same and this is being taken by government actors through the redistricting process. The redistricting process is unconstitutional when used for this purpose like any other state mechanism used for inalienable takings. The justices have all the legal reason in the world to act on this and they have the capability to also: They could if they wished entirely eliminate the process of redistricting through state legislatures for purposes of federal representation and this is what should be done for the sake of our individual rights.

If they do not act, we will have a constitutional crisis on our hands shortly.

erwinhaaslibertarian

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;"

Where does our constitution mention the judiciary? Or even that there be congressional districts? Sounds to me as though the elected legislature can do anything it pleases provided that each rep represents 750k people (an unrelated SC finding provides for this.)
Someone will draw lines and these lines will be partisan, and it may as well be drawn by those constitutionally constituted and let them screw the opposition.

guest-oswelii

The US Supreme Court is more Britannic than constitutional. The issue ought not be gerrymandering but partisan politics, which are more false, or at least constitutionally incorrect, than real. "We the people" is a disaffected lot that lacks knowledge of the Constitution's context. Without it, the document is seen as poorly written. With it, the 1789 Constitution can be rightly divided to ring true to intents to improve the union and establish justice, and its purposes: ensure domestic tranquility, provide for the common defense, promote the general welfare and secure these blessings of liberty. It needs politics to be real and build consensus in agreement with its principle to effect safety and happiness. If we do not learn from Britannic mistakes, they will remain as our future.

guest-ilniawn

A problem not addressed in the story is that the Court had earlier dealt with the issue of boundaries when deciding to push for minority-majority districts as a way to keep the parties from disenfranchising minority voters. Part of the difficulty the Court is having is that the alignment of race and party has meant that skin color, party and the rural/urban divide have resulted in geographic distributions that can be carved in several ways, some of which give very different results after the votes are counted. While the Republican gerrymandering has led to a percentage of Republican Congressmen that is much higher than the aggregate popular vote, it has also made some seats very solidly Democratic and often represented by minority legislators who are happy with their safe seats. While the problem is often phrased along an R/D axis, it has more than two dimensions. At the very least, the job of drawing lines in districts should be taken out of the hands of those who will directly and immediately benefit from a particular set of lines. Some states have independent commissions. Voters should choose candidates; Candidates should not choose voters.

QpGSfnzBAg

A fairly easy test would work in a two party system. That would be to define a fair set of boundaries to be one that results in the proportion of representatives reflecting the popular vote in a state. As reported by the Economist in recent article concerning this issue, there are states with Democrat / Republican voter equality that return 80% Republican congressmen. Those boundaries are clearly unrepresentative. New district maps can be easily constructed to mitigate those kinds of skewing.

Perthonality

My prediction: SCOTUS, being a partisan body, will find a way to strike down any gerrymandering that benefits Democrats, but lets through that which benefits it's preferred party.

ashbird

I could not agree more with colleague commenters @jouris' analogy of pornography and @jvictor1789's articulated rationale in their thinking on partisan redistriciting, as well as the thoughts and sentiments on the subject written by everyone in chronological order below. Holy Moses! In time the USSC will split hair with each and every one of the 10 Commandments. Murder? Ain't no murder if you have enough dough to hire a fancy lawyer. Adultery? Ain't so if one of the two is a pole-dancer or Playmate of the Year. "Thou shalt not be a sloth"? "No way, we are thinking hard to justify having everyone in America owning a semi-automatic assault rifle, particularly all teachers in the classrooms (next step up is a fully-automatic by the Law of Progress). Has USSC pawned its soul? What's in it for you, Justices? What is there to struggle with? Faust is only a story, you know. If you believe in "God", I think he is crying.
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jvictor1789

The irreparable problem with Justice Alito's hypothetical is that the aggregate of bearable injustices results in an unbearable one.
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Like dcp123 pointed out, the existence of one district gerrymandered so that a certain Party has a consistently predictable lead by a relatively small yet comfortably large enough margin to ensure victory is not an individual problem that warrants judicial redress, but the total sum of such a systemically engineered system clearly is, for it results in one party being permanently and widely over represented, hence negating the efficacy of the voting rights of a majority of the public, one the pillars of Democracy itself.
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Gerrymandering has to be judged not by the ever-arguable blandness of its methods, but by the severity of its aggregate consequences in consistently negating representation for the majorities. And,often, an unfair yet proposed to be permissible small change in the proportions of the representation of the will of the voters can have consequences far exceeding the small voting margins that are being played with. Not only because the total sum of such subtle or not so subtle manipulation over all the districts will result in unquestionably unjust imbalance in a legislature or Congress, but because the fact of being the majority Party, be it by only one representative, allows that Party to initiate legislation, launch or stop investigations and other very consequential prerogatives that could have been exercised by the opposite party had it not been for the gerrymandering of districts.
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Modern technology can bring this XIX century problem, formerly a bearable vice almost as old as the Republic, to its reductio ad absurdum, because as Justice Breyer insinuated, computers -specifically Big Data AI programs- could construct a district-drawing mechanism totally and permanently unassailable with winning margins practically as large as desired by its enablers and suffered by its victims, indeed in a balance of sufferance that over time would be far more skewed than what we presently would accept to bear, not to say the framers of the Constitution originally intended.
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With IA you can Gerrymander Congress to be 60/40 from a baseline vote of 49/51. Redress can not wait any longer.
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The Supreme Court may find it hard to concentrate on the procedural aspect of Gerrymandering, but it is also unnecessary. All it has to do is focus on its results: any district-drawing system that has the consequence of allowing the size of one Party's share of elected representatives overturning its total vote counts on the state level can be deemed unconstitutional, and so could be if its percentage of representation exceeds the percentage of the votes that justified such representation by a certain margin (could call it "reasonable" and either hint or specify a number here based on the guidance of figures that certainly Historians can offer after over two centuries of examples) , and let the States redesign their multiplicity of systems as they wish so that they comply with those two simple enfranchisement baselines.
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Jimmy Carter, in his latest-and I have to admit, rather touching, having just survived a terrible illness I need not mention- interview with Judy Woodruff, expressly mentioned yesterday the coming Gerrymandering ruling, that is with good reason present in the minds of many people, and pointed out that in his view the Supreme Court has been acting as if it had the interests of the very wealthy and Corporations more in mind than those of mere voters. I think, and I hope, that he will be proven wrong.
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Greetings to FADFFLLFAF

dcp123

There is a problem with Justice Alito's "hypothetical involving a legislature’s choice between two otherwise unobjectionable voting districts—one slightly benefiting the majority party and the other slightly benefiting the minority party. Let’s assume the majority party picks the district that serves its interests."
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Serious Gerrymandering doesn't involve the results in one district. Adding more voters who favor the party in power to one district means taking them away from another district. The point - except perhaps in the case of the mindlessly self-defeating redistricting imposed by Maryland's Democrats - is not to win one district by 20%. That wastes many votes in favor of the ruling party that could have been used to win in other districts.
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Serious Gerrymandering is the effort to go from a situation in which some districts strongly favor one party., some strongly favor the other and some can go either way to a situation where a large majority of districts favor the ruling party by a not very large margin and a few favor the other party by an obscenely huge margin. That's how a party can get 45% of the votes and 70% of the seats. That's the sort of strategic redistricting we see in places like North Carolina or Wisconsin. And, at least in the case of North Carolina, Maryland's openly partisan intent is not unusual.
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The chair of the committee on redistricting explained why, in a state fairly evenly split between Democratic and Republican voters, the districts were drawn to give the Republicans ten seats and the Democrats three: "“I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”
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Alito's is smart enough to know that serious Gerrymandering looks to the number of seats won by each party, not at winning one district without consideration of the result in other districts.

Houshu

When people spend majority, even all, of their awake time far, far away from their place of residence, what the point of assigning voting district? In the age where a person's gender can be self-identified, we should let people self-identify their voting district.

Sense Seeker

Computer algoriths based on personal information are great tools for gerrymandering. Likewise, algorithms that only use information on where (potential) voters live could be used to find optimal districting - optimised to ensure each vote is weighed equally, perhaps balanced with minimising the length of the summed district borders.
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That modelling could be done by an independent agency. The algorith could be made public and checked by anyone who wants to. Make the whole thing transparent.
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A drawback is that the districts that ensue may not coincide with allegiances with the people on the ground; boundaries may cut through communities. But it doesn't appear that the current system performs any better on that aspect.
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In this contested space, the solution as to be an objective, technical fix executed by an independent actor in a transparent way. It simply cannot be left to politicians.

Peace Love and Understanding

However to implement a proportional system of representation you would need a Constitutional amendment. It would upend state/federalism in a lot of ways, obviously. But as things stand lots of people's rights to one person one vote are being violated by the states in breach of the 14th Amendment.

Peace Love and Understanding

What to do about it is very simple:

We need proportional representation in Congress instead of a First Past the Post majoritarian system.

That is the only way to ensure that everyone's vote counts equally.

jouris

Justice Alito doubted whether any line could be drawn between acceptable and excessive levels of partisanship in creating district maps.
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Nobody's managed to come up with a clear line around pornography either. But the Court somehow managed to rule on that. Perhaps Mr Justice Alito merely dislikes the answers that a ruling would have to provide, and the applications that would result.

jouris

The trouble with "limiting voting districts to 4 sides" is that states aren't rectangular. And once you've got wiggly edges, you're kind of stuck.

Ed Zimmer

It would seem a simple geographic rule, such as limiting voting districts to four sides, while maintaining an equal population (per district) requirement, would solve the problem. It wouldn't eliminate gerrymandering but would make it much less subject to abuse, without significantly encroaching on state rights.