The Supreme Court May Regret Making It Harder to Challenge Gerrymanders

Ian Millhiser at Think Progress brings up a good point. The newly bolstered conservative majority on the Supreme Court seems poised to issue rulings on gerrymandering that they believe will help the Republican Party continue to have more power than their absolute amount of electoral support can justify. As Millhiser details, GOP-drawn districts have led to some preposterous results in recent years, like the Republicans winning control of 63 percent of Wisconsin’s assembly seats in an election in which the Democrats won 54 percent of the popular vote.

Yet, if the 2020 election goes as badly for Donald Trump as some recent polls have indicated it might and the down-ticket conservative candidates suffer severely as a result, the upcoming Supreme Court rulings could backfire on them in a spectacular way.

Up until this point, the Supreme Court’s Republicans have been quite hostile to partisan gerrymandering challenges — although, oddly enough, Brett Kavanaugh appeared more open to these challenges than his four Republican colleagues during oral arguments last March. The smart money suggests that the court will split 5-4 along party lines, quite possibly holding that federal courts aren’t even allowed to consider partisan gerrymandering cases.

…it’s easy to see why Republicans would want such a result. After all, Republicans walloped Democrats in 2010, the last redistricting year. And, if 2020 is an ordinary election, Republicans are likely to emerge from it well-positioned to keep their gerrymanders in place.

But if 2020 is a Democratic wave election, Kavanaugh and his fellow partisans may come to regret taking partisan gerrymandering challenges off the table. After ten years of watching Republicans win elections regardless of what the voters preferred, Democrats are not likely to be in a conciliatory mood in 2020. If they trounce the GOP, Democrats will undoubtedly use their new legislative power to draw the most spiteful, meticulously gerrymandered maps the nation has ever seen.

I’m not as lacking in doubt about this as Millhiser seems to be, but that’s mainly because the left in this country is pursuing progressive reform of the redistricting process. At President Obama’s urging, former attorney general Eric Holder has been leading that push. The Democrats could stop all those efforts on a dime and engage in a spurt of revenge-driven gerrymandering, but I doubt that will happen in more than a few states. What’s more certain is that adverse Supreme Court rulings could disrupt or derail some of these reforms, making the Democrats give up less out of magnanimity than necessity.

In that case, a resort to spitefully and meticulously gerrymandered districts could become a more attractive and uniform option. What I think is more likely is that the Democrats will continue to push for more nonpartisan map-drawing in order to take it out of the hands of politicians. That’s a longer term project than challenging already existing districts in court.

This is actually a topic that is worth questioning the presidential candidates about, because a lot will depend on the leadership at the top. But Millhiser is definitely right about one thing. Just because gerrymandering has been working great for the Republicans over the last decade doesn’t mean it will be nearly as effective in the next decade if the Democrats have a big night in November 2020.

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Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com