After a 2017 survey organized by the Campaign Legal Center revealed the overwhelming level of opposition to partisan redistricting schemes, the election-reform group FairVote summer things up with a three-word message: “Everybody Hates Gerrymandering.”
The Campaign Legal Center’s bipartisan survey — which was conducted by Democratic pollster Celinda Lake and Republican pollster Ashlee Rich Stephenson — found that 71 percent of Americans wanted the US Supreme Court “to define a standard that ends extreme partisan gerrymandering.”
Unfortunately, this US Supreme Court is not inclined to respond to popular cries for fair maps and real choices on Election Day.
Despite being handed a challenge to extreme gerrymandering that went to the heart of the matter, and that was tailored to respond to concerns raised by at least some of the justices, the Court on Monday refused to set a standard.
In an unsigned opinion, the justices rejected a challenge to gerrymandering in Maryland. At the same time, in response to a groundbreaking case from Wisconsin, the Court declined to consider the merits of the argument that gerrymandering of the state in 2011 by Governor Scott Walker and his Republican allies had effectively denied Democratic voters fair representation of their views and values in the State Assembly.
The justices said they were not convinced that the plaintiffs had standing to bring the suit—despite the fact that the plaintiffs had prevailed when the case was heard by a panel of federal judges. The high court has now sent the case back to the lower court, where the plaintiffs can have another go at making arguments that might prevail.
With no small measure of understatement, The New York Times explained after Monday’s frustrating avoidance of the issue by the justices that “The decisions were a setback for critics of partisan gerrymandering, who had hoped that the Supreme Court would decide the cases on their merits and rule in their favor, transforming American democracy by subjecting to close judicial scrutiny oddly shaped districts that amplify one party’s political power.”
The hopeful notion that the Supreme Court might before this year’s elections upend partisan gerrymandering in Wisconsin—and by extension the rest of the country—had faded as the clock ticked further and further into 2018. But now the prospects for a judicial remedy seem even more distant. Not hopeless, mind you, but far off—as in, the Supreme Court won’t come riding to the rescue anytime soon.
That does not mean that the fight against partisan gerrymandering is finished, however. The Court invited additional litigation. Bill Whitford, the retired University of Wisconsin law professor who was the named plaintiff in the Wisconsin case, says, “We are confident we can prove the real harms to real citizens caused by lawmakers who choose their voters instead of the voters choosing their representatives.”
Paul Smith, the vice president of litigation and strategy at Campaign Legal Center, who argued Whitford’s case before the Court in October, 2017, says:
This case is very much still alive. We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with.
When legislators draw voting maps to favor one party over another and to stay in power, voters no longer have a voice in the political process. Extreme partisan gerrymandering is increasingly getting worse—damaging our democracy and eroding voters’ confidence in our system. We will continue advancing efforts, in this case and others as well as through the political process, to end this practice and safeguard every citizen’s fundamental right to vote and have it count.
That’s good news, but not good enough. So this is where the long-suffering voters of gerrymandered states must step in.
States still have the power to end gerrymandering in time for the elections in the legislative and congressional districts that will be drawn based on the 2020 Census.
There are elections this fall for governorships and control of legislatures that will be drawing the new maps.
If everybody really does hate gerrymandering, then there is a response that can and must come from the ballot box. For that to happen, however, voters will need to be inspired to cast their ballots for governors and legislators who favor fair districts.
There is remarkably broad support for this change. As FairVote notes: “This cuts across party lines: 80 percent of Democrats, 68 percent of independents, and 65 percent of Republicans” backed action by the high court. Celine’s Lake amplifies that point when she reminds us that “It’s hard to find bipartisan consensus in America today. This issue has bipartisan consensus even among partisan voters.”
The challenge, as with every issue, is to turn public sentiment into potent politics. Progressive candidates must now step up. But there is powerful evidence that if candidates build the case for reform, the voters will come.
In Wisconsin, Democratic contenders to replace Scott Walker did not merely criticize the Court’s failure. They were busy making gerrymandering the election issue that it must be. “Your rights as a voter are on hold. That’s what the Supreme Court told us today,” complained state Representative Dana Wachs. “But we can fix this in November.”
“For the past eight years, our governor has sought to undermine the democratic process by making it harder for people to fairly exercise their right to vote. Restricting voting rights and partisan gerrymandering is institutional discrimination,” complained firefighters union leader Mahlon Mitchell, who promised that: “As governor I will continue the fight for fair maps and support the basic tenet of our democracy – the more people who vote, the better.”
Former state representative Kelda Helen Roys promised to prioritize the fight against gerrymandering — on the campaign trail and in office. And she was specific about how she would do so. “As governor,” pledged Roys, “I will veto any maps that give one party an unfair advantage, and will work to restore voting rights and ethics in government, so that Wisconsinites can have faith that our elected representatives serve our needs rather than their own.”
If partisan gerrymandering is to be undone by the voters who are most harmed by the practice, this bluntness of language, this boldness of vision, must become the common parlance of progressivism in 2018.
(This story was updated to include references to the Campaign Legal Center’s role in organizing the 2027 poll on gerrymandering.)