WASHINGTON—In a decision important to workers nationwide, the U.S. Supreme Court dodged the issue of whether a partisan gerrymander, of state legislative districts and the U.S. House, violates voters’ constitutional rights.
Instead, in a case challenging the heavily Republican—and heavily gerrymandered—Wisconsin legislature, the justices punted. They said the 12 Democratic voters, from Madison and elsewhere, who challenged the state assembly’s districts, must prove harm to themselves.
General harm to their rights to fair representation or fair consideration of their views in the legislature doesn’t qualify, Chief Justice John Roberts said in the 9-0 ruling.
And then the justices applied the same rule to a Maryland case involving that state’s gerrymandered 6th Congressional District, which the heavily Democratic legislature redrew in 2011 with the specific goal of ousting then-Rep. Roscoe Bartlett, a Republican, from office.
But the court didn’t close the door on all partisan gerrymandering suits. Instead, it told the Wisconsin group they’d have to go back to lower courts and try, try again—but only if they can show the gerrymandering hurts them individually.
The case is important to workers because GOP-gerrymandered legislatures nationwide, including in North Carolina, Michigan, Pennsylvania, and Missouri, have spent their time actively pushing through anti-worker legislation. That includes so-called right to work laws, measures weakening teacher tenure (Michigan), and outlawing project labor agreements (Missouri). The Missouri legislature also nullified St. Louis’s and Kansas City’s minimum wage increases.
The badly gerrymandered North Carolina legislature not only passed anti-worker laws, but also redrew the purple state’s congressional map to pack African-American voters, who are virtually all Democrats, into three of its 12 congressional districts, and drown them in the other nine.
That “packing” and “cracking” is what the Wisconsin residents said their GOP state legislature’s majority did in 2011. Tar Heel State politicians also approved one of the most-draconian voter ID laws in the U.S.
Meanwhile, the Wisconsin legislature’s GOP-run Joint Budget Committee left intact right-wing Gov. Scott Walker’s budget plan “tying increased public school funding to a full compliance with the union-busting Act 10 requirements,” the state fed said. Act 10 was the anti-public worker law Walker pushed through the legislature in 2011, despite massive union protests in the dead of winter in Madison.
The four Democratic-named justices, led by Elena Kagan, agreed that the 12 Wisconsin Democrats lacked standing to bring the suit. And those justices said four of the Democrats initially alleged the gerrymandered legislature harmed them, but didn’t pursue that point in the lower courts.
Even Roberts recognized that’s important. He sent the case back down to U.S. District Court “to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes.”
This version of the case was “about group political interests, not individual legal rights,” Roberts wrote.
“Partisan gerrymandering causes other harms” to voters, including harming their First Amendment right to free association, Kagan said, even while agreeing the case should go back to the lower court. But “they didn’t advance it with sufficient clarity or concreteness to make it a real part of the case.” That’s what they must do, before expanding their argument to the impact of the gerrymandered legislature.
“The court had abundant evidence that extreme gerrymandering in Wisconsin and Maryland is toxic for democracy,” said Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law, which has carried out extensive studies of gerrymandering and its impact.
“While it’s disappointing to see the court punt, the decisions aren’t losses. Both cases go on, and the justices will have the chance to finally say something about when gerrymandering is illegal next term, in a case out of North Carolina with overwhelming evidence of how gerrymandering quashes voters’ voices.” Federal judges in North Carolina tossed the legislature’s lines due to racial gerrymandering.
“Until then, Americans should redouble their efforts to fix the redistricting process before the next national redistricting in 2021—ensuring states draw fair maps that give voters a choice,” Li said.
The Wisconsin and Maryland remap cases attracted “a flood of briefs from Republican and Democratic lawmakers arguing gerrymandering harms voters and American governance,” the center said. Among those arguing against political gerrymandering: Gov. John Kasich, R-Ohio, and Sen. John McCain, R-Ariz. They were joined by state legislators, political scientists, and historians.
Meanwhile, with strong union support, Ohioans already took their first step towards ending gerrymandering, approving a non-partisan commission to redraw that heavily gerrymandered state’s congressional lines. The GOP-run Ohio legislature packed all the Democrats in the purple swing state into two districts around Cleveland and one each elsewhere in northeast Ohio and in Columbus. The GOP holds Ohio’s other 12 seats. The next step there, advocates say, is another commission to fairly draw state legislative lines.
Several other states, including Arizona, Iowa, and California, also have non-partisan congressional redistricting commissions.
“The Brennan Center has documented the effect of extreme gerrymandering on the U.S. Congress. In Extreme Maps we found that it gives Republicans an advantage of 16-17 seats in the current U.S. House. In Extreme Gerrymandering and the 2018 Midterm we found Democrats may need to win the national popular vote by more than a 10-point margin to take back control of the U.S. House.”
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