A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.
Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.
If partisan gerrymandering is a substantial evil worth fighting — and I believe it is — we should now get serious about finding that remedy through other means. The Constitution’s Elections Clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,” and in fact Congress has in the past prescribed to the states standards for districting. These include standards on compactness, a vital principle of good districting that all by itself would disallow many of the most garish gerrymanders by which U.S. House members reach the Capitol. Countering the gerrymandering of state legislatures is a tougher challenge, but even in states without a process for ballot initiatives it is a natural issue for reformist governors and others who run in non‐districted races.
Around the country, machine politicians must be thinking they’ve got a free hand to draw maps even worse than the ones last round. We shouldn’t let them.
