On June 27th, the U.S. Supreme Court held that they would continue to pass no judgment and not intervene in partisan gerrymandering cases. That means the Supreme Court will not set a standard for when redistricting is done in a way that intentionally groups voters by political party.
In the cases of Rucho v. League of Women Voters and Lamone v. Benisek, voters asserted that the state legislature purposefully drew districts in favor of certain parties to gain seats in the House in North Carolina and Maryland, respectively. Previously, the Supreme Court has avoided issuing resolute guidance in this space, claiming that there was no standard to judge when a partisan gerrymander has gone too far.
Their concern is that judging a partisan gerrymandering case would imply favor for one party over the other. With the Court continuing their reluctance to remedy partisan gerrymandering in the Rucho and Benisek cases, it looks like the Supreme Court will not intervene in unfair congressional districts for the time being.
So where do we go from here in the fight for fair elections and fairly drawn districts?
Moving on to State Courts
Jason Torchinsky, an election law attorney and partner at Holtzman Vogel Josefiak Torchinsky PLLC, remains hopeful. At the American Constitutional Society Supreme Court Term Review, Torchinsky suggests that the fight against partisan gerrymandering is not over, just ultimately moving to state courts.
Cases like LWVPA v. Commonwealth give hope for the state level fight for fair elections. When the League challenged Pennsylvania’s congressional districts as unconstitutional under their state constitution, the Pennsylvania Supreme Court ruled in their favor.
The use of Pennsylvania’s state constitution established a framework for a state constitutional standard to measure extreme partisan gerrymandering. With this framework, partisan gerrymandering can be battled out in state courts by leveraging similar constitutional clauses.
However, Daniel Tokaji—Constitutional Law professor at Ohio State University Mortiz College of Law, an authority on election law, and fellow panelist at the ACS Supreme Court Term Review—is less optimistic. While these cases may shift to state courts, he asserts that the transition may not be that easy.
Tokaji states that this sentiment is rather empty given that state court judges are often elected on partisan platforms. If state judges are elected on a partisan platform, how could they fairly adjudicate partisan gerrymandering claims?
The Independent Redistricting Commission Solution
A solution some states have turned to is independent redistricting commissions. Arizona, California, Colorado, Utah, and Michigan established independent redistricting committees to limit partisan gerrymandering by state legislators. With redistricting plans out of the hands of partisan officials, voters hope that a nonpartisan commission will yield more fair results.
However, independent redistricting commissions still face challenges. In 2015, the Arizona State Legislature questioned the constitutionality of the independent commission in Arizona Legislature v. Arizona Independent Redistricting Commission. Thankfully the court upheld the commission, but Chief Justice Roberts’ dissent resonates with his majority opinion in Rucho.
The future battle against partisan gerrymandering is far from over, and the battleground has shifted. Accordingly, so has our approach to fighting for fair and equal elections.
Now more than ever is an important and crucial time to get involved with the League and your community. Contact your local and state Leagues to see how you can help the fight for fair elections today!