At the end of June, in one of the final decisions of its term, the U.S. Supreme Court barred federal courts from considering questions of partisan gerrymandering. The decision has immediate implications, because after next year’s Census tallies the nation’s population, the states will use the new data to divide the districts from which we elect representatives in the state legislatures and the U.S. Congress. These lines will generally remain in place for a decade.
Thanks to earlier Supreme Court decisions, there are some constraints on how these maps are drawn. Districts must encompass roughly the same number of people. They cannot be drawn to favor one racial group or another. The jointly-considered Rucho v. Common Cause and Lamone v. Benisek presented the Court with the opportunity to add partisan bias to that list. The other partisan gerrymandering cases that have risen to the court over the years have been punted, but there was hope the maps in question in these cases might be so blatantly skewed to finally force a change.
But the justices in the majority said no. And the upshot of their choice, a standard denied, is that the maps drawn in 2021 can be lawfully slanted to entrench a party in power for the ten years that follow.
In the majority opinion of Chief Justice John Roberts, and four consignees, the judiciary lacks the necessary roadmap for approaching cases so steeped in politics. Federal courts, he writes, “have no commission to allocate political power and influence” when there is no “constitutional directive or legal standards to guide us.”
In the eyes of the Court, the absence of explicit guidelines makes partisan gerrymandering a “political question,” an issue that must fall for resolution to the political branches of the government—the legislative and the executive.
Roberts conflates partisanship with politics because he sees them as joined at the hip. He writes: “To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”
In his view, appointed judges—appointed, unaccountable, and thus apolitical—can’t justly dictate how partisans should draw political lines.
But this conflation is dangerous. Partisan gerrymandering breaks the elections Roberts would ask to fix it. In seeking to stay above the partisan fray, he lets partisanship triumph.
It’s a view of politics that elevates greed into purpose. As in the infamous Citizens United decision before it, the Court is blinding itself to a political system being stripped of the popular accountability that holds it all in place.
In high school, in the run up to the 2012 presidential election, I spent hours drawing careful red-and-blue electoral maps, writing blog posts dissecting debate performances. Delighting in horse races and trivia, I had fallen for the view of a frictionless politics.
It’s not an altogether flattering memory. The righteous game became an obsession, and I went off to D.C. for college reveling in the tradition of the pilgrimage. I would do good—broadly, societally—because I would learn the system. In the process, I’d justify every ambition and earn a place in the superstructure.
When I was moving, I found a state rundown I’d written, I remember, in the yellow light of an AP U.S. government class. Each state and a short sentence diagnosing its political demography, boiled and breathless.
This was good. The answer, it seemed, lay in knowing more, sensing better, like a critical mass of political savvy would allow me to transmute ideas into policy that helped people—abstract, theoretical. If the aim was fuzzy, it was wide enough to cover and justify any baser personal ambition.
And why not? This was the axiom underpinning years of debate conventions—your reasoned morality would influence and win—and played out on-screen in the soft glow of The West Wing’s rolled sleeves, stacked papers, ringing phones. A military snare, a shot of a tired bureaucrat sucking coffee and coming in early. That’s all it took. We were two good years away from redemption. A couple good candidates. The do-gooders would outfox unseen and underprepared opponents by virtue of their sober diligence, supercharged by moral rectitude.
This was a politics of affect and effort—performing an earnest vigor—and it was to be our salvation. In gorging myself on conventional wisdom, I sought to master the rules of the game. Knowing how to play was the key, I thought, to winning. That anyone would look for gaps in the framework or bend the rules never really entered my mind.
I was focused on me. This was an easy delusion. This was a game I was sure I could win, so why look any further? I was giving in, happily, perpetuating a politics centered on greed, veiled by duty.
If you want to gerrymander a state, you don’t start with an empty map. You start with precise voter data.
Redistricting authorities need to have some information about the population they’re dividing. One person, one vote—the legal principle that mandates legislative districts stretch across (almost) the same number of people—requires knowing where people live. Various states apply other constraints on the contiguousness, compactness, and competitiveness of their districts, and some require mapmakers keep communities of interest, counties, or localities together where possible. The Voting Rights Act and subsequent Supreme Court decisions prohibit states from drawing lines to prevent racial and language minority communities from electing their preferred candidates.
In effect, you have to use some data. But there’s been a shift. The quality of that data has improved dramatically, and fairly quickly. Sophisticated, robust voter information and precise mapping technology allows redistricting authorities to slice and dice a state a million different ways to achieve exact outcomes.
Justice Elena Kagan noted in the dissenting opinion that the gerrymanderers in these cases— Democrats in Maryland and Republicans in North Carolina— more or less announced they were going to draw lines to favor their party over the other, made the switch, and got their intended result in every election held since.
The outcomes were predictable. In North Carolina, for example, Republicans—by their own admission—sought to draw lines that would reliably split the state’s 13 U.S. Congressional districts 10-3 in favor of their party (despite winning only half of the statewide vote). To do this, they split up areas that reliably voted for Democrats, diluting these voters’ collective power by packing some into districts they were sure to win handily, and dispersing others into Republican-rich districts they’d never be numerous enough to contest.
As a technical exercise, it was impressive. An expert testifying for the challengers in the case produced 3,000 maps that adhered to North Carolina’s redistricting committee’s standards, and compared the predicted electoral outcomes. As Kagan notes: “Every single one of the 3,000 maps would have produced at least one more Democratic House Member than the State’s actual map, and 77% would have elected three or four more.”
The outlier, a map chosen for its extreme outcomes, has delivered on its promise in each successive election.
Though he acknowledges that partisan gerrymandering is a problem, Roberts says it’s hard to say what “fairness”—the presumed corrective—might look like. The solution, he argues, still lies in elections. And interceding in this arena is risky, Roberts writes, in part because “[e]xperience proves that accurately predicting electoral outcomes is not so simple.”
The Framers could not have predicted this many elections, yes. When first addressing the issue of partisan gerrymandering, the Supreme Court justices of twenty or thirty years ago might not have been able to, either. We can. The advocacy organization FairVote predicts more than 80 percent of U.S. House races at 99% accuracy more than a year before the election. They do this “high-confidence” forecasting with a plainly unsophisticated model—by using results from previous cycles.
“Many voters split their tickets,” Roberts claims, though the decline split-ticket voting is in fact well-documented.
Other voters, Roberts writes, “never register with a political party, and vote for candidates from both major parties at different points during their lifetimes.”
He more or less concedes the point: stubborn, stifling partisanship is incompatible with responsive elections. For his argument to stand, he has to trust that people can hold their representatives accountable. And as long as people like John Roberts cling to the unshakeable solvency of American democratic norms, those acting in bad faith can and will exploit that blind faith for plainly undemocratic ends.
On one level, Roberts is right: there is danger in a court perceived to be biased. Unaccountable judges tipping the scales toward one party or the other—see, say, Bush v. Gore—would undoubtedly damage the legitimacy of the judicial system.
In weighing imagined harms, however, Roberts shows he is less bothered by partisanship breaking representative democracy than the perception of a partisan judiciary. He conflates doing no harm with doing nothing.
Latent power is a power all its own. Abdication on issues of partisan gerrymandering opens a vacuum, and without the threat of judicial remedy there’s little doubt gerrymanderers enter the 2021 districting cycle emboldened.
What’s more, Roberts’s deference lifts the hunger for unassailable partisan domination into an essential feature of our politics. Those who seek power can swaddle their ambition in the language of service, insulated by institutional legitimacy, even as they chip away at the accountability mechanisms—fair elections—through which the people grant them that power in the first place.
It’s all in the game. The parties are teams, the politicians are players—not representatives, never public servants—and twisting the rules to give yourself an advantage is canny and wise. This is the immense privilege the generally unthreatened enjoy.
I certainly have. I went to DC ready to play, because politics wasn’t personally material: watching favored candidates lose offended my sensibilities and threatened my abstracted notions of right and wrong, but it rarely obstructed my lived experience. I would be more or less fine—white, male, straight, Christian, educated and financially secure in a political society that has always, always centered those identities. Put me in breeches and I could walk through 18th-century Philadelphia, Charleston, Boston, into any of those statehouses, without turning heads.
Devoid of a relative personal stake, it’s easier to narrow your vision on elections as an end in themselves. When winning becomes the foremost valid aim, we allow an inane focus on optics over outcomes. The smarmy punditry focused on forecasting how things will “play” roots itself in knowing the rulebook.
So I understand where Roberts is coming from. We want to cling to the framework. We’re desperate to give the benefit of the doubt. So long as the people interested in bending systems toward themselves say the right words and quote the right texts, we’ll watch their faces but not their hands.
The positive solutions Roberts presents have the ersatz deficiency of a consolation prize. Congress can indeed pass laws to limit partisan bias in districting. The states—often through those same self-interested lawmakers—can implement tougher line-drawing standards, or create independent redistricting commissions to limit partisan influence over the process.
But in the face of Congressional gridlock, rampant voter suppression, attacks on voters’ ability to pass laws to check incumbents, and now judicial inaction, it’s hard not to wallow in disappointment. Reforms will take time, and in the interim many of the entrenched politicians will rule unaccountably. We’ll have a whole bunch of hollow, theatrical elections.
It’s hard to pinpoint when exactly my thinking shifted, when I stopped seeing the system as self-contained, self-healing. When I was in high school I sculpted an identity around this knowledge of the game. In D.C., maybe for the first time, I could catch a grotesque reflection—smug, grasping, detached. What’s harder to accept is the possibility that my political sureties spoiled when I started to sense the limits of my own ambitions. Maybe I only rejected greed when I saw it wouldn’t be enough.
In waiting for external salvation, it’s easy to put aside the harder work. But there is a blueprint for repair in the movements for change engaging people around the country. Organized public outcry is essential: this decay has depended on keeping the debate theoretical and exclusive, cabined among established actors unwilling to concede the need for reforms that might endanger their status. We should never have looked to the Supreme Court for a perfect answer. Roberts is wrong and this decision is a massive missed opportunity, but judicial action would only have ever put up a guardrail.
This because there is no soft glow. We won’t alchemize diligence into material change. I write this as much as a reminder to myself as anything else. The real solution lies in not in a blind faith in partisan gamesmanship, but in steadily building power in localities and states over time. We need to make political greed untenable, and we have a clearer sense now of how it might manifest than ever before.
A politics that makes victory the foremost objective is a game. Only the players can win. Ultimately, detaching politics from the way that power is or is not exercised to improve society serves only to benefit the empowered, and we should demand more of those who have authority and those who seek it than a performance of duty and sacrifice. The politics of personal ambition will never stretch wide enough to sustain us. ▩
Jack Noland is a writer who lives in New York.