In 1812, Elbridge Gerry, the then-governor of Massachusetts, signed a bill creating a state senate district with an elongated shape designed to elect a member of his party. From that originated the term “gerrymander” (the district looked like a salamander to some) to designate the creation of election boundary lines to maximize partisan advantage.
Last week, in a 5-4 decision the U.S. Supreme Court held that partisan mischief in the redistricting was not redressable by the federal courts.
At issue were challenges to two line-drawing attempts, one from North Carolina and the other from Maryland.
In North Carolina, the Republican Legislature drawing congressional districts drew a map primarily designed to consolidate Democratic voters and efficiently allocate Republican ones. The result in 2016 was that Republicans won 10 of 13 seats, despite only prevailing narrowly on a statewide basis with 53% of the overall congressional vote.
The Maryland case was brought by Republicans challenging a Democratic congressional redistricting plan that defeated a GOP House member who had previously won by 28 points.
In writing the majority decision, Chief Justice John Roberts stated: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The rationale was that the Founders saw redistricting as a partisan process and did not provide a right under the U.S. Constitution to contest on that basis.
The court ruling means that the remedy for partisan overreach is not in the federal courts. It is state courts on state grounds, state laws and the voters of that jurisdiction.
Of particular note, Roberts was explicit in not supporting gerrymandering as desirable: “Excessive partisanship in districting leads to results that reasonably seem unjust.”
Idaho has minimized gerrymandering in the past two redistricting rounds by creating an independent redistricting commission by a constitutional amendment in 1994. The membership of six is split evenly between the parties with each party chair appointing one member and the majority and minority leaders in each house appointing the other four. A plan of redistricting requires the affirmative vote of two-thirds of the commission members.
The criteria set forth in Idaho Code § 72-1506 for drawing districts are limited to:
- Population data from the U.S. Census Bureau
- Preservation of “traditional neighborhoods” and “local communities of interest”
- Being substantially equal in population (and not violate federal law such as the Voting Rights Act)
- Avoiding odd shapes
- Minimizing division of counties
- If counties are divided, have districts connect to contiguous counties
- Follow the lines of local voting precincts (this one can be waived by 5 commissioners)
- Do not divide counties to protect a particular political party or a particular incumbent
- Legislative districts shall be interconnected by state or federal highways (also can be waived by 5 commissioners)
Some wonder if Idaho’s Republican Legislature may be emboldened by the Supreme Court ruling and move to make the process partisan. A bill was proposed in the last legislature by Republicans to add a seventh commission member, appointed by the state constitutional officers (interestingly enough, the attorney general was omitted), and allowing redistricting decisions by a simple majority rather than two-thirds. This bill did not receive a floor vote.
The danger in such tinkering is that political fortunes often shift. Imagine a scenario where some point in the near future Democrats obtain a majority of state constitutional offices and majorities in both houses of the Legislature. With partisan redistricting, Idaho Democrats could create a single congressional district concentrated around Ada County and likely to elect a Democrat. They could concentrate Republican voters in relatively few legislative districts and distribute their partisans more evenly. That kind of system would disenfranchise many Republicans in Idaho by lessening the impact of their vote.
That sounds unlikely, but if Republicans were to tip the independent redistricting commission to a partisan tool, it would be equivalent. In the words of Justice Roberts, that would “reasonably seem unjust”.
A better course would be to broaden out the requirement that redistricting not be designed to benefit a party or incumbent by eliminating the requirement that such protection only applies to county divisions. Such a provision would empower the Idaho Supreme Court to strike redistricting plans that have an excessive partisan tilt.