Brett Kavanaugh could decide how redistricting is done
Newest justice will be center of attention when court hears gerrymandering cases next month
Voters keep voicing their frustration with the politically fraught way that state lawmakers redraw congressional districts every 10 years, and have approved ways to outsource the work with hopes of making fairer maps.
Colorado and Michigan approved ballot measures in November to create independent redistricting commissions to prevent one party from carving up a state in such a way as to entrench itself in office. Missouri approved a plan in which a state demographer and a statistical test will help determine lines. Utah approved the creation of an advisory commission.
“This is an exciting day for Utah,” the leaders of Better Boundaries, a group that pushed for Proposition 4, announced in a press release election night. “The voice of the people will once again be heard in drawing legislative lines — making sure Utahans choose their representatives and not the other way around.”
But the ultimate success of those commissions, as well as lawsuits to combat partisan gerrymandering, could hinge almost entirely on the views of one person — newly confirmed Supreme Court Justice Brett M. Kavanaugh.
Kavanaugh will be the center of attention when the Supreme Court hears oral arguments in March about congressional maps in North Carolina and Maryland. He is expected to have the pivotal vote in the cases that could curtail how states use politics to draw legislative and congressional districts — or leave them free to be even more partisan in the future.
And a future legal challenge to one of those newly created independent commissions could give conservatives on the Supreme Court a chance to reverse an earlier ruling and strike them down as unconstitutional, legal experts say.
Also watch: The many ways to draw a gerrymander
The court rules
There’s plenty of action on the issue beyond the Supreme Court. Well-funded Democratic and Republican groups have mobilized for political campaigns to put their parties’ lawmakers and officials in place to influence how maps for Congress and state legislatures are drawn after the 2020 census.
And a lawsuit in Pennsylvania last year struck down the congressional map under that state’s constitution, and required a new one for the November elections, which shifted the advantage away from Republicans.
But the Supreme Court could dramatically alter the gerrymandering landscape on a national level. The justices have never fully answered whether the nation’s voters can challenge as unconstitutional any legislative maps states draw that entrench a benefit to one political party to the detriment of another. It hasn’t allowed those lawsuits, but it hasn’t shut the door, either.
The justices did consider the issue in cases last year, but they ultimately sidestepped the central question. Chief Justice John G. Roberts Jr. was vocal during oral arguments about concerns that the court would step into the inherently political process to pick winners and losers in elections. He also cast doubt on the way voting groups want to measure when too much politics is involved in the map-drawing process, calling the proposals “sociological gobbledygook.”
Unfortunately for voter rights advocates who want the courts to step in, a change of heart from Roberts might be the best hope. If that happens, it could be based on the idea that both parties would be equally constrained if partisan gerrymandering is reeled in.
The North Carolina and Maryland cases provide the justices with stark examples of how partisan gerrymandering can affect the rights of voters to choose their representative, but also how it can be utilized by whichever party is in power.
In Maryland, lower courts found state officials in their 2011 map sought to increase the Democratic advantage in the congressional delegation from 6-2 to 7-1. The redrawn 6th District, which covered most of western Maryland, prompted experts to change their assessment of the race there from “Solid Republican” to “Likely Democratic.”
Almost half of North Carolina’s voters — 49.5 percent — chose Democratic congressional candidates in 2018, but Republicans still won 10 of the state’s 13 congressional seats (although what appeared to be a Republican win in the 9th District remains undecided because of allegations of election fraud).
The court’s four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — appear ready for the courts to step in. Last year, they signed on to part of one opinion that stated, “only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”
Back then, it was Justice Anthony M. Kennedy who voter rights groups hoped would join the liberals and provide the fifth and deciding vote. But he didn’t before stepping down from the court in June.
Now, the issue is back at the Supreme Court with Kavanaugh on the bench, and his views on the issue are a bit of a mystery. He has never decided a partisan gerrymandering case and was not asked about his views during his contentious confirmation hearings last year.
“You sort of hope that maybe he’ll see the situation and say that the country needs help on this one, it’s a bad situation and it’s clearly unconstitutional,” said Paul Smith, a veteran Supreme Court litigator who argued one of the cases before the justices last term and represents voters in the North Carolina challenge in his role at the Campaign Legal Center.
But Kavanaugh’s approach to the law “lines him up with the other conservatives on the Court who believe that the judiciary has no business policing gerrymandering,” Rick Hasen, a law professor at the University of California, Irvine who follows election law litigation, wrote in The Atlantic in January.
Spotlight on commissions
When Kavanaugh was nominated, it was that conservative legal approach that led liberal advocacy groups to warn that the Supreme Court could undo longstanding precedents where Kennedy had cast a key vote to keep them, such as Roe v. Wade, the landmark 1973 decision establishing the right to an abortion.
One much newer precedent is from a 2015 case in which Kennedy joined the liberal wing to allow states to use independent redistricting commissions and completely leave state lawmakers out of the process, and Hasen is among election law experts who predict it could be in jeopardy.
The case, a challenge to the map Arizona’s independent commission drew after the 2010 census, turned on a clause in Article 1 of the U.S. Constitution. That Elections Clause says that the time, place and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.”
In a 5-4 decision, Kennedy and the four liberal justices found that it would be “perverse” to interpret that clause to exclude lawmaking through the people, such as the 2000 ballot initiative Arizona voters approved to create the independent commission.
Roberts, in a scathing dissent joined by the court’s conservative wing, wrote that the majority’s opinion misinterprets the text of the Constitution. “Nowhere does the majority explain how a constitutional provision that vests redistricting authority in ‘the Legislature’ permits a State to wholly exclude ‘the Legislature’ from redistricting,” Roberts wrote.
There are new justices since that decision, but it appears that Roberts and three other conservative justices could maintain that the Arizona case was wrongly decided. “It clearly is a concern that issue might come back,” Smith said.
The question then is whether Kavanaugh, in such a case from Michigan or another state, would stick with the very new Arizona precedent or side with the conservative wing and decide that independent commissions are unconstitutional.
“But this is a new and contested precedent, and if Chief Justice Roberts pushes for reconsideration you can bet that the other conservative Justices will go along,” Hasen wrote in the Harvard Law Review.
In the Arizona case, Roberts wrote that Americans could change the redistricting process through congressional action, or via the constitutional amendment process, which requires a two-thirds majority vote in both the House and the Senate.
Congress, of course, could act to take the future of partisan gerrymandering out of the hands of Kavanaugh and federal courts. House Democrats, in their bill packed with top overhaul priorities (HR 1), want to require states to use independent commissions to design their congressional plans.
The push is almost certain to stall, since Senate Majority Leader Mitch McConnell and other Republicans oppose the effort.
But the idea of independent commissions is enjoying some popularity now. Almost three times as many likely 2020 voters — 60 percent versus 23 percent — would rather have an independent commission draw lines than the state legislature, according to a January poll of likely voters commissioned by the Campaign Legal Center.
In May, Ohio voters approved changes to the state’s congressional redistricting process — in part requiring bipartisan support for the next redistricting plan after the 2020 census — with 75 percent of the vote.
Colorado voters approved an independent commission with 71 percent of the vote, and Michigan voters approved the same with 61 percent.
Groups in Arkansas and Oklahoma now are working on ways to create redistricting commissions in their states.
And, if state lawmakers take advantage of the power of computers to draw unbalanced maps after the 2020 census, it could create even more motivated voters in the future.