Law & Principles
Ray Carter | June 27, 2019
Ruling means one less hoop in redistricting process
In an opinion issued Thursday, the U.S. Supreme Court ruled that partisanship cannot be a factor weighed by judges in redistricting challenges. The opinion, issued by a 5-4 majority, declared, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
The decision means Oklahoma lawmakers will have one less hoop to jump through when they redraw state congressional and legislative districts in 2021, after next year’s Census is completed.
“It’s one less consideration that you have to worry about,” said Clark Jolley, a former state senator who served as co-chair of that chamber’s redistricting committee the last time lines were redrawn in 2011.
The case before the U.S. Supreme Court centered on challenges to redistricting maps in North Carolina and Maryland that critics argued were unconstitutionally partisan gerrymanders drawn to favor one political party—Republicans in North Carolina, and Democrats in Maryland.
The court majority rejected those claims, although the opinion conceded, “The districting plans at issue here are highly partisan, by any measure.”
However, the court majority noted complaints of partisanship in the drawing of legislative districts have been common since the nation’s birth.
“Partisan gerrymandering is nothing new. Nor is frustration with it,” the opinion, written by Chief Justice John Roberts, noted. “The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.”
Thus, the nation’s founders were “aware of electoral districting problems” and chose to address those concerns by “assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress,” Roberts wrote.
“At no point was there a suggestion that the federal courts had a role to play,” the opinion stated. “Nor was there any indication that the Framers had ever heard of courts doing such a thing.”
The decision added, “To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”
The court also noted there is no agreement on what standards could be used to redraw lines without undue partisanship. Groups that have challenged redistricting plans have argued a political party’s share of legislative seats should roughly correspond with its share of the total statewide vote. Yet the court noted a map that maximizes the number of politically competitive districts could result in one party holding an overwhelming majority of seats in some years. On the other hand, drawing lines to create a consistent partisan split that corresponds with the statewide vote would require “cracking and packing” districts in ways that may break up political subdivisions and communities.
“Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal,” the opinion stated. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.”
During Oklahoma’s last round of redistricting, Jolley said the first priority was to make sure new districts complied with federal laws regarding racial representation.
“The number one concern that I had was making sure that we didn’t draw districts in a racially inappropriate way, because if we had done that then Oklahoma would have become subject to the Department of Justice’s jurisdiction to approve the redistricting plan,” Jolley said, “and I didn’t want the Obama administration approving our redistricting plan.”
As a result, the first districts redrawn were the state’s minority-majority districts, and that was done with the input of incumbent minority lawmakers, he said. After minority-majority districts were redrawn, Jolley said Oklahomans’ voting habits meant there was little reason to focus on partisan make-up in the remaining districts.
“I didn’t really care about partisanship, because John McCain won every county and Mitt Romney was going to win every county the next time,” Jolley said. “So I didn’t feel I really needed to worry about Republican versus Democrat, because it was so lopsided in the way that our folks were voting.”
In rejecting calls for courts to weigh partisan considerations when evaluating the constitutionality of redistricting maps, the U.S. Supreme Court majority also noted that voters’ decisions can defy straight-line projections.
“Experience proves that accurately predicting electoral outcomes is not so simple, either because the plans are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time,” the court opinion stated.
In 1981, the court majority noted, Indiana Democrats challenged a state legislative map draw by Republicans. That legal challenge did not succeed, but Democrats nonetheless continued to gain legislative seats throughout the decade until they won a state House majority in 1990.
“Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations,” Roberts wrote. “Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes. For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.”
Oklahoma’s political history has echoes of the Indiana case cited by the court. Although Democrats controlled the Legislature and redrew district maps following the 2000 Census, Republicans still won control of the Oklahoma House of Representatives in the 2004 election and held divided control of the Senate after the 2008 elections.
When Republicans redrew Oklahoma’s legislative districts after the 2010 Census, the Senate map was criticized as excessively partisan, even though the associated redistricting legislation passed with bipartisan support.
The House map, in contrast, drew praise from minority Democrats. The Oklahoman quoted then-House Democratic Leader Scott Inman of Del City praising the House map, saying it showed that lawmakers “really can work together” in the state’s interest “and not in the interest of partisanship.”
Yet under that House map, praised by Democrats, Republicans continued to make gains. In 2011, the GOP held a 70-31 advantage in the House. Today, Republicans have a 77-24 edge.
The change in the Senate has been more dramatic. In 2011, the party split was 32 Republicans to 16 Democrats. In the following years, the GOP margin went as high as 42-6 before Democrats regained a net three seats. It’s not known how much, if any, role redistricting played in those results rather than the voting patterns Jolley cited.
If judges were required to weigh partisanship in legal evaluations of congressional or legislative redistricting cases, the U.S. Supreme Court majority warned it would require “an unprecedented expansion of judicial power” and the “intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives.”
Yet it is possible that efforts to seek such an expansion of judicial power will continue, although on a different playing field. University of Oklahoma Professor Keith Gaddie, an expert on redistricting, said the U.S. Supreme Court ruling “basically kicks the gerrymandering question to state courts and state constitutions.”
Regardless of the court’s ruling, redistricting will remain an intense process where lawmakers grapple with calls to preserve representation of racial minorities and keep communities of interest together while still developing districts with a roughly equal number of citizens in a state with widely divergent population patterns.
But not having to pre-guess judges’ subjective views on districts’ partisan composition, on top of all other considerations, could slightly simplify the process.
“The Supreme Court ruling,” Jolley said, “is going to make it one less factor that they have to be concerned about in the future.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.