Jurisprudence

Lower Courts Are Lobbying SCOTUS to Rein In Partisan Gerrymandering

Protesters attends a rally for “fair maps.”
Protesters attends a rally for “fair maps” on March 26 in D.C.
Tasos Katopodis/Getty Images

In June, the U.S. Supreme Court will finally decide whether the federal judiciary can rein in partisan gerrymanders. But the lower courts aren’t waiting for the justices’ approval. In the past two weeks, two federal district courts have struck down gerrymanders in Ohio and Michigan, ruling that legislators’ political redistricting violated the Constitution. A federal district court invalidated Maryland’s most gerrymandered congressional district in November 2018; three months earlier, another court blocked North Carolina’s congressional map as an infringement on voters’ constitutional rights. These decisions follow a landmark 2016 decision by a federal district court striking down Wisconsin’s legislative map as an illegal partisan gerrymander. While SCOTUS dillydallies, the lower courts are taking action, aggressively overturning gerrymanders across the country.

This judicial assault on gerrymandering is all the more surprising because the signs from the Supreme Court are not exactly encouraging. In 2004, a plurality of the justices held that federal courts cannot resolve partisan gerrymandering claims because they could not identify a standard to measure them. Last year, SCOTUS punted on two cases that sought to identify the appropriate standard, giving voting rights advocates little reason for optimism. Yet lower courts have forged ahead on their own, issuing sprawling opinions that condemn partisan gerrymandering as an affront to Americans’ constitutional liberties. Why?

The answer may have something to do with the unusual way that these cases proceed through the courts, which drives home the odious nature of political redistricting, forcing judges to confront the illicit machinations that lie behind given maps. Under federal law, when a plaintiff files suit against a legislative or congressional map, a three-judge federal district court is convened. The judges are drawn from both district and appeals courts. If the plaintiff has stated a viable claim, the court holds a trial and renders a decision. Its ruling is then appealed straight to SCOTUS, which must hear the case. (Congress created this system, which stems from legislation in 1937 and 1976, because it believed redistricting lawsuits were especially important to both states and voters and should therefore be resolved quickly and definitively.)

This process differs from the usual procedure, in which a single federal judge hears a case, an appeals court reviews her decision, and the Supreme Court decides whether to review the appellate ruling. And it creates a curious dynamic. First, this procedure compels appeals court judges to help conduct trials—dragging them out of the world of abstract appellate review and into the whirlwind of testimony and cross-examination and exhibits. Second, it creates a fairly direct dialogue between the three-judge panel and the Supreme Court. The panel knows its decision will be reviewed by SCOTUS, so its opinion, for better or worse, often reads like an exhortation to the justices. A typical district court will have its opinion evaluated by an intermediate appeals court before it reaches the Supreme Court; a three-judge district court is basically speaking to SCOTUS, urging it to rule a certain way.

This dynamic may help to explain why lower courts keep ruling against gerrymanders, and why they do so in such an emphatic and meticulous manner. Partisanship certainly can’t explain it: The Wisconsin and Maryland decisions were written by Ronald Reagan appointees. The Michigan ruling was joined by a George H.W. Bush appointee. George W. Bush appointees agreed that gerrymanders in North Carolina and Ohio were unconstitutional. Each lower court decision striking down a partisan gerrymander, in other words, was supported by at least one Republican appointee—and two were written by notable conservatives.

Each opinion is also lengthy, if not sprawling. The Ohio ruling is 301 pages. The Michigan decision is 146. The majority opinions in the Wisconsin and North Carolina cases span 118 and 294 pages, respectively. Only the Maryland decision is relatively brief, at a mere 59 pages, because the plaintiffs challenged a single district, not the entire map.

All of these rulings walk readers through the manipulations used to create gerrymanders in painstaking detail. We learn about mapmakers’ analysis of political data, their efforts to dilute votes for the minority party, to divvy up “communities of interest”—cities, counties, neighborhoods—with warped district lines. Often, we learn about legislators’ open desire to gerrymander their opponents out of office, their intent to maximize their own party’s power through redistricting. These decisions are filled with smoking guns, statements by politicians that acknowledge the purely partisan goal of the gerrymandered map.

As a result, these rulings seethe with indignation over lawmakers’ effort to rig elections for their own party. They describe gerrymandering as “repugnant to representative democracy,” as a “noxious” and “pernicious practice that undermines our democracy” and “violates the core purpose of legislative apportionment.” They reflect a deep familiarity with the record and a refusal to pretend as if today’s gerrymandering is mere politics as usual or a hazy harm that courts cannot redress. After hearing from so many lawmakers and experts, these three-judge panels have a keen understanding of how gerrymandering works and how it punishes voters for associating with their preferred political party—a cardinal First Amendment sin. Moreover, unlike SCOTUS, these panels do not waffle over their ability to resolve the constitutional injuries at hand: They take action, explaining how maps must be altered to restore voters’ fundamental right to freedom of association.

In other words, these courts have called SCOTUS’s bluff. They’ve shown the justices exactly why partisan gerrymandering infringes on the Constitution, and how it can be remedied. If the Supreme Court disagrees, it’ll have to overrule these rigorous assessments of the data, of the ample evidence that points toward a constitutional violation. The Supreme Court will have to tell this diverse array of judges that they were wrong, that these gerrymanders aren’t actually illegal or that they can’t really be fixed—even though the courts have already identified precisely how they can be fixed. It would require an uncommon amount of judicial arrogance for the justices to inform these courts that, after spending thousands of hours scrupulously scrutinizing these claims, they arrived at an erroneous conclusion.

Perhaps a majority of this Supreme Court is willing to do just that. But the lower courts clearly want to make it as difficult as possible for the justices to reverse their decisions. They appear to be lobbying SCOTUS, explaining why it must rein in extreme partisan gerrymandering. It’s unclear whether any of the conservative justices will agree. But at least these courts have laid out the stakes in no uncertain terms: The Supreme Court can stand up for democracy or allow partisan mapmakers to gerrymander fair elections out of existence.