Although the Supreme Court has struck down racial gerrymandering, it has never agreed on a standard for assessing the constitutionality of partisan gerrymandering.
Both political parties engage in partisan gerrymandering. But Republicans currently benefit from it more. This is largely due to their successes in the 2010 congressional election, which enabled them to redraw House district boundaries to advantage Republicans. They also used other strategies for voter suppression, including voter ID requirements and limited voting hours and locations.
Vicky Hausman, co-founder of Forward Majority, an organization geared toward helping Democrats win back state legislatures, listed in the Los Angeles Times several voter suppression tactics the GOP has utilized. They include trying to impeach judges who challenge gerrymandered maps, stripping power from newly elected Democratic governors, overturning voter ballot initiatives, passing voter suppression laws, and gerrymandering.
The Supreme Court will decide two cases involving partisan gerrymandering by the end of June. One challenges gerrymandering by Republicans, the other by Democrats.
In Rucho v. Common Cause, plaintiffs allege that North Carolina's Republican legislative leadership drew a congressional map in order to entrench long-term Republican majorities. Even though they only won about 50% of the popular vote, Republicans still gained a majority of available seats in the 2018 Midterm elections by an extreme margin of 10-3.
A three-judge district court overturned the congressional plan drawn by the North Carolina legislature to replace a prior plan that courts had struck down as racial gerrymandering. The district court found the replacement plan violated the Equal Protection Clause, the First Amendment and Article I of the Constitution. The Supreme Court will review that decision.
Benesik v. Lamone involves a Republican challenge to the configuration of the Sixth Congressional District in Maryland. The plaintiffs allege that Democratic lawmakers violated the First Amendment's freedom of political association by intentionally utilizing voters' histories and party affiliations to move large numbers of Democratic voters into the district and large numbers of Republican voters out.
A three-judge panel of the appellate court granted the plaintiffs' request for a permanent injunction against the electoral map. The Supreme Court will decide whether to uphold that injunction and rule that the Democrats' partisan gerrymandering is unconstitutional.
Justices Ginsburg, Breyer, Kagan and Sotomayor have indicated a willingness to clamp down on partisan gerrymandering. On the other hand, Justices Thomas, Alito and Gorsuch oppose federal limits on partisan gerrymandering. Kavanaugh hasn't ruled on a major gerrymandering case but his record on voting rights is disturbing. And Chief Justice Roberts has called standards for measuring the impact of partisan gerrymandering "sociological gobbledygook."
If the Supreme Court refuses to strike down districts for partisan gerrymandering, it will be up to the state courts to hear challenges based on violations of state legislation and constitutions. But enforcement will be spotty and partisan gerrymandering will continue in many states.
From Shelby County v. Holder, which invalidated critical provisions of the Voting Rights Act, to Citizens United v. FEC, which allows unlimited money in elections, the high court has been steadily diluting voting rights. The census citizenship question and concomitant partisan gerrymandering by the GOP pose additional threats to the right to vote, and indeed, to democracy itself.
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