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Supreme Court Punts On Partisan Gerrymandering


The Supreme Court ruled on partisan gerrymandering today. This was a closely watched decision from the court, which essentially punted. The cases tested whether extreme partisan gerrymandering - you know, drawing legislative and congressional district lines to maximize the power of incumbents - is constitutional. NPR legal affairs correspondent Nina Totenberg is here.

Hey there, Nina.


INSKEEP: OK. Two different states involved here - what were they, and what were the cases?

TOTENBERG: Well, partisan gerrymandering actually maximizes the incumbent majority party to perpetuate their power.

INSKEEP: Sure. Sure.

TOTENBERG: So in - there were - the states were Wisconsin and Maryland. In the Wisconsin case, which was the main case, the Republicans who control the state Legislature drew district lines so that even when the Democrats won a decisive statewide victory in terms of votes, the GOP still carried nearly two-thirds of the legislative seats.

INSKEEP: Wait a minute. Democrats had a majority of the votes, but Republicans had a vast majority of the seats. OK.

TOTENBERG: Vast. Vast. And in the Maryland case, the Democrats drew district lines to ensure that one of two traditionally Republican congressional seats would flip to the Democrats. And so the question was whether these tactics are unconstitutional, and if so, on what grounds.

INSKEEP: And what do the court say?

TOTENBERG: So they didn't say much. They sort of decided not to decide by saying that this case as it was presented to the court did not have plaintiffs from the state of Wisconsin, which was the main case, who had standing to sue.


TOTENBERG: Yes. Yes, they might've been hurt in Madison, Wis., but they not - they wouldn't similarly have been hurt in Sheboygan. And so the right to vote, they said, is a right guaranteed by the Constitution and - but that this case is not the kind of case that we all thought it was.

INSKEEP: The people who didn't have standing, they were just ordinary voters...

TOTENBERG: They were...

INSKEEP: ...Who said their votes were thrown away, in effect.

TOTENBERG: They were ordinary voters who claimed that their votes were essentially thrown away. But the court said, you - the various grounds on which you brought this case, you didn't prove adequately.

INSKEEP: Meaning they avoided the bigger question of whether gerrymandering itself is OK.

TOTENBERG: Exactly. In fact, they did something rather unusual. They sent the case back to the lower courts to say, OK, see if they can make any of these other cases that they claim that they made here.

INSKEEP: Then there's Maryland.

TOTENBERG: And then there's Maryland, which is - in the Maryland case, they also remanded the case. But in none of these cases will it be good enough, so to speak, for the 2018 election. It's probably too late for the 2018 election. By 2020, we're almost into redrawing district - you know the census is in, the new census.

INSKEEP: And they're going to fight this over again. You know, I'm thinking about this, Nina Totenberg. It may simply be a question of strictly interpreting the law, but it also fits - doesn't it? - that general pattern of John Roberts, the chief justice, who seems to aim for the narrowest decisions possible and goes for some kind of consensus when he can get it.

TOTENBERG: You know what? This - these cases smack of a compromise. They couldn't figure out how to do it. There weren't five votes. Justice Kagan lays out in her concurring opinion how they failed in this and how they might prove their case. She gives them a road map, but she is only speaking for four members of the court. She's quoting Justice Kennedy from other decisions that he's written, but she's only speaking for four members of the court. And the chief justice goes out of his way to say, look; our decision today is only this part that has the majority of the court.

INSKEEP: OK, so one justice is giving some advice about how to make the case, but there's no real decision on the substance here. Nina, thanks very much.

TOTENBERG: You're welcome.

INSKEEP: NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.