Most Americans agree that partisan gerrymandering is a scourge to democracy. But is it one that citizens can fix themselves? That’s the theory floated by Justice Neil Gorsuch during oral arguments at the Supreme Court on Tuesday over two major gerrymandering cases. “One of the arguments that we’ve heard is that the court must act because nobody else can,” Gorsuch said. But “is that true,” given that some states have already “provided for remedies in this area” through “citizen initiatives” and “at the ballot box”? Given that fact, why should the federal courts step in when “there’s a lot of movement in this area” already?
As Talking Points Memo’s Tierney Sneed has observed, Gorsuch’s question effectively weaponizes redistricting reform as an argument against federal court intervention. His solution—let the people solve the problem—is absurd for at least two reasons: The court may well strike down independent redistricting commissions, and even if it doesn’t, at least 24 states bar citizens from circumventing the legislature to enact gerrymander reform. In response to this problem, Paul Clement, the conservative attorney defending gerrymanderers, pointed on Wednesday to H.R. 1, the Democratic measure that would compel each state to adopt an independent redistricting commission. But as Clement hinted, there is a good chance that the Supreme Court would also strike down this central provision of H.R. 1. The upshot is that without the support of the federal judiciary, millions of Americans will be powerless to stop partisan redistricting.
Independent commissions like those in Arizona and California are the gold standard of gerrymander reform. Citizens in both states adopted these commissions via ballot initiative, since legislators had little appetite to surrender their redistricting authority. These commissions prevent Republicans and Democrats from exercising undue influence over congressional maps and maximize the number of competitive districts in the states. But in Arizona, disgruntled legislators tried to reassert their power to gerrymander, filing a lawsuit alleging that the commission violates the Constitution’s elections clause. This provision states that the “times, places and manner” of holding congressional elections “shall be prescribed in each state by the legislature thereof,” though Congress can “make or alter such regulations.”
By a 5–4 vote, the Supreme Court upheld Arizona’s commission, ruling that “the legislature” can encompass “the legislative power” exercised by the people through initiative or referendum. Justice Anthony Kennedy joined the liberals, and the conservative justices wrote searing dissents. Now that Kennedy has been replaced by the more conservative Justice Brett Kavanaugh, it is entirely possible that the Supreme Court could reverse that decision and invalidate these commissions. If it does, the two states that adopted fully independent redistricting commissions in 2018, Michigan and Colorado, will see their reforms overturned by courts. Depending on how broadly the court rules, at least six other state’s redistricting processes—which limit legislative input over district lines—could fall too.
So Gorsuch’s solution may only be temporary. But worse, it doesn’t help residents of 24 states with no ability to sidestep their legislatures to enact gerrymander reform “at the ballot box,” as Gorsuch suggested. That’s where H.R. 1 might come in. A key plank of the bill, which already passed the House of Representatives along party lines, would direct every state to adopt an independent redistricting commission. Clement cited this law as proof that Congress is the “solution” here. H.R. 1, Clement insisted, “certainly shows that Congress is able to take action in this particular area.”
That’s true in theory, even though the bill has no chance of passing the Republican-controlled Senate. But Clement added a caveat. H.R. 1, he said, “was an effort to essentially force states to have bipartisan commissions. Now, query whether that’s constitutional.”
Wait—what? Remember, the elections clause states that Congress can “make or alter such regulations” regarding the “manner” of congressional elections. So why can’t Congress compel states to adopt independent redistricting commissions? The probable answer, as a white paper by Pack the Courts points out, is that this requirement could be struck down under the Supreme Court’s “anti-commandeering doctrine.” Under that principle, Congress can’t force state legislators to adopt or enforce a federal law. SCOTUS could easily cite the amorphous and ambiguous doctrine to justify invalidating the anti-gerrymandering provision of H.R. 1 on constitutional grounds.
Clement, who served as solicitor general under George W. Bush, is the premier conservative advocate at the Supreme Court. He has argued dozens of cases that further GOP goals, attacking Obamacare while defending voter suppression, anti-immigrant laws, and corporate exploitation of workers. Notably, Clement represented the Arizona Legislature in its attempt to destroy its own independent redistricting commission. His legal views are frequently adopted by five justices on the Supreme Court. When he questions the constitutionality of a law, a majority of the court listens. And his implication that a major part of H.R. 1 might not pass constitutional muster all but broadcasts an immediate challenge if that bill were to ever become law. That means there is a fair chance that the Supreme Court will not only strike down state-level gerrymander reforms but also block congressional efforts to rein in partisan gerrymandering. (Such a decision would be wildly unpopular: A poll by YouGov Blue, commissioned by Pack the Courts, found that just 18.1 percent of voters think independent redistricting commissions are unconstitutional.)
It would be a brutal one-two punch if SCOTUS refused to police partisan gerrymandering and then refused to let Americans halt it through the democratic process. That is the darkest timeline, but it is also an entirely plausible one. Gorsuch’s alternatives are a red herring. The courts must place limits on partisan gerrymandering because it might not let the people do it themselves.