John Roberts must be pleased with Ohio. Writing for a 5-4 majority last week, the chief justice of the Supreme Court advised that states stay away from the courts in seeking relief from extreme gerrymandering. He recommended legislative action or a petition-driven ballot initiative. Ohio made use of both routes, concluding last fall in voters endorsing a much-improved process for redrawing U.S. House districts.
What the court majority must know is that many states do not have the initiative option, and thus residents lack a tool for applying pressure to lawmakers. For now, Ohioans must wait for the next census to see new districts. The 2020 elections will be conducted once more with districts among the most grossly gerrymandered in the country, Republicans having engineered a practically permanent 12-4 advantage in the state’s U.S. House delegation.
Recall an Associated Press analysis earlier this year. It found that more fairly drawn districts in Ohio would have resulted in a 9-7 Republican edge for this session, the share more accurately reflecting the 52 percent of the vote Republican candidates received.
The court majority acknowledges that “excessive partisanship in districting leads to results that reasonably seem unjust.” It just doesn’t see a role for the courts in a solution. It worries about “an unprecedented expansion of judicial power,” judges making political calls, or somehow divining the appropriate outcome for each party.
Actually, the majority misses the point, something Justice Elena Kagan makes evident in her informed and sharp dissent.
The concept isn’t that judges would play a sweepingly decisive role. Rather, they would blow the whistle when gerrymandering goes too far. They would intervene in the worst instances, such as the North Carolina and Maryland maps before the high court, the former drawn by Republicans, the latter by Democrats, both examples of partisan excess putting democratic principles at risk.
How would the courts know when things are out of hand? Kagan explains they already have experience. They have struck down racial gerrymanders. Even more pertinent, as the justice points out, the lower courts in the cases at hand have established criteria to identify the worst gerrymandering.
Take North Carolina. Not only did the Republican majority set the goal of ensuring a favorable 10-3 split in the congressional delegation — no matter the moment. Republicans pushed as far as they possibly could. Kagan recounts how one expert produced 3,000 potential new maps. Each resulted in at least one more Democratic House member, and three-quarters produced three or four more.
The gerrymandering effort persisted until it landed on the one map that produced the desired Republican advantage.
Kagan tells how Maryland Democrats could have conducted redistricting with minimal adjustments. Instead, they moved 360,000 residents out of a district, and 350,000 in, as part of locking down a 7-1 advantage in U.S. House seats.
Such extreme gerrymandering is possible because of advanced computing power, crunching precisely through vast amounts of voter information, allowing operatives to meet state criteria for redistricting while achieving their partisan objective. Kagan shows how federal judges, including those who ruled against the Ohio gerrymander, have turned the data against the partisan operatives, the number crunching providing a way to detect “when political actors have a specific and predominant intent to entrench themselves in power by manipulating district lines.”
So there is a role for the courts, and a measure for what is extreme. More, as Kagan emphasizes, the judiciary has good reason to intervene when required.
The justice asks: “Is this how American democracy is supposed to work?” Not if the thinking of the Founders matters, the core idea of the revolution holding that the people are sovereign. Kagan recalls James Madison writing that to retain an “intimate sympathy with the people,” U.S. House members must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.”
Yet Election Day suffers a hard blow when the results are predetermined, the ballots of many voters diluted to insignificance. The fallout from extreme gerrymandering builds from there, as it fans cynicism and polarization, eroding the value of compromise and the capacity to govern. And now a majority of the Supreme Court contends there’s nothing it can do to check those who seek, in Justice Kagan’s words, to “beat democracy."
Douglas is the Beacon Journal/Ohio.com editorial page editor. He can be reached at email@example.com.