In a much-anticipated ruling, the Supreme Court ruled in a 5-4 decision that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  That means that the courts will not intervene to stop state legislatures from drawing bizarrely shaped and unfair districts designed to dilute many people’s votes in order to gain a political advantage, no matter how egregious. 

Partisan gerrymandering means that through clever drawing of district boundaries, a state legislature can minimize the impact of political opponents’ votes, and can win a majority of seats despite winning fewer votes:

In the case before the Supreme Court, the North Carolina representative in charge of drawing the state’s congressional map proposed an explicitly partisan gerrymander, saying “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”   The plan worked.  In 2016, Republicans won 50.3% of the votes for Congress but won 10 congressional seats.  In 2010, before the hyper-partisan map was in place, Republicans won 54% of congressional votes and six out of 13 seats.  Today’s decision also addressed a congressional map from Maryland designed to benefit Democrats in that state.  

The majority opinion, written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, did not deny that partisan gerrymandering could be used to effectively disenfranchise many voters, or even that it was “incompatible with democratic principles.”  Nevertheless, the majority found that the claims were non-justiciable.  In other words, the Court decided that because it could not come up with a standard to determine which gerrymanders went too far, the judiciary would not intervene in these claims at all. 

Instead, the Court left it to the states to police themselves.  The majority stated that one way states are addressing this problem is “by placing power to draw electoral districts in the hands of independent commissions.” 

It is true that in 2018, voters in Colorado, Missouri, and Michigan overwhelmingly voted to approve constitutional amendments creating commissions tasked with drawing fair congressional and state legislative districts.   

However, that does not mean that the people’s desire for fairness will be respected.  In Missouri, the state legislature is doing all it can to thwart the will of the people and keep the power to draw their own districts for themselves. Lawmakers tried to reverse many of the ballot measure’s protections, and vowed to try again next year before the changes go into effect in 2020. 

 There is, of course, every incentive for legislatures to fight to keep the power to draw their own districts in the most favorable way possible in order to maintain their power.  If they do not give it up willingly, today’s decision means that the people cannot turn to federal courts to preserve their rights to vote in fair elections.