Redistricting ruling has both sides looking at next steps

Protesters rally against partisan gerrymandering before the Supreme Court last

The U.S. Supreme Court has blocked lower court orders to redraw two congressional districts and nine state House districts for the 2018 elections. The Court seems no closer to entering the political thicket of partisan gerrymandering than it was when Justice Kennedy wrote in Vieth v. Jubelirer (2004) "there are yet no agreed upon substantive principles of fairness in districting", and that, consequently, "we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden" on constitutional rights. In both cases, however, the court declined to rule on the practice of partisan gerrymandering itself, instead focusing their rulings on specific procedural aspects of each individual case.

While the court regularly polices state redistricting efforts that can harm racial minorities, it has never thrown out a map for partisan gerrymandering.

"Under current process, many people think their vote matters, but in many legislative elections, the partisan advantage for one party or the other is so significant that voters practically forfeit their right to choose their legislature", says Sen. A blowout win in one district means lots of "wasted" votes for the victorious party under the Efficiency Gap model, but that doesn't necessarily mean the map was created to bring about that outcome.

In a unanimous decision Monday, the U.S. Supreme Court chose to send the case back, finding those who argued for the plaintiffs had not demonstrated standing for the case in demonstrating harm.

Political scientists and some politicians were intrigued at the notion of an algorithm proving unconstitutionality, but at the October oral arguments Chief Justice John G. Roberts Jr. lambasted the concept as "sociological gobbledygook" and said "the intelligent man on the street is going to say that's a bunch of baloney". "The court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it". For decades, the Court has been hesitant to weigh in on partisan gerrymandering, and the decision affirms their decades-long stance.

From the court's view, the remedy for any gerrymandering lies in defining individual harm, and only in a voter's district, rather than the effects on a party statewide.

"While Democrats would like to replicate the success of our REDMAP program from 2010, the success of that program is based on having candidates and policies that voters want, which is how Republicans flipped almost 1,000 seats during the Obama Administration on lines largely drawn by Democrats", said Matt Walter, President of the Republican State Leadership Committee.

Maryland Democrats are defending the redrawing of the 6th District, which includes the westernmost part of the state. Two years later, Republicans won 52 percent of the two-party statewide vote, yet they won 63 of the 99 seats.

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The court also ruled against a challenge to a map in Wisconsin that had been contested by Democrats.

Alternatively, states could move to fully outsource the redistricting process to tech firms capable of creating dozens or hundreds of different maps based on relatively simple sets of parameters-such as requirements that districts score below certain thresholds on different measurements.

The Supreme Court also avoided a decision in a gerrymandering case in Maryland. "But while it's disappointing to see the Court punt, the decisions aren't losses". "But the court permitted lawsuits against unfair maps to continue", said Dale Ho, director of the ACLU's Voting Rights Project.

"While I am disappointed that the Supreme Court has chosen not to decide on the merits of extreme partisan gerrymandering for now, it is not the end of the war for fair districts". While certainly not a landmark, precedent-setting ruling, it leaves the door open and shows the pathway forward, especially through the concurring opinion written by Justice Kagan and joined by three others.

The cases are Gill v. Whitford, 16-1161, and Benisek v. Lamone, 17-333. Should the Supreme Court eventually restrict partisan gerrymandering, it still can't undo the policies those lawmakers enacted in the meantime. In legal briefs, the plaintiffs charged that Democratic state officials diluted the votes of Bartlett's constituents "because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine".

Even with opportunities for future challenges, the delay amounts to a loss for anyone hoping this decision would help eradicate partisan electoral maps in time for the midterms. "But the Court is not responsible for vindicating generalized partisan preferences".

But time is already tight - the next maps will be drawn in 2021, which means initiatives have a short window to make it to the ballot.

Issues may change, but the common interest in getting along does not.

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