Supreme Court punted in its decision but the case lives on
The Supreme Court’s decision on Monday not to strike down voting maps in two cases as unconstitutional partisan gerrymandering was widely seen as a setback for critics of a practice both parties have used to maximize their power over the other.
For lawyer Paul Smith, who helped argue the Wisconsin case and lives part-time in Flint Hill, it could have been much worse.
“It’s a setback in that we had hoped we’d actually get a good, clear decision that gerrymandering is unconstitutional and shouldn’t happen,” he told the Rappahannock News. “Instead we got sent back to fill in what the court saw as a gap in our evidence.”
That will set the case back and involve additional proceedings before the issue is resolved. “On the other hand, I’m heartened that they didn’t just flat out rule against us,” said Smith, who dubbed the case “very much still alive,” in a statement immediately following the decision.
In issuing its decision, the Supreme Court punted on resolving key questions about when partisan gerrymandering is considered unconstitutional, sending the cases back to lower courts on technical grounds. The two closely watched cases out of Wisconsin and Maryland could have had wide-ranging implications for the way voting districts are drawn across the United States.
Smith, vice president of litigation and strategy at the Campaign Legal Center, which helped bring the case before the court on behalf of 12 Democratic voters in Wisconsin, argued that the map drawn by a Republican-led state assembly in 2011 guaranteed one-party control of the legislature regardless of how votes were cast.
That tactic violated voters’ first amendment rights and their right to fair representation, Smith and his co-counsel argued. In a 9-0 decision, the Court ruled that the plaintiffs had failed to demonstrate personal injury and remanded the case to the District Court, which had earlier ruled the Wisconsin map unconstitutional.
In the Maryland case, the court said the challengers waited too long to seek judicial action blocking a district they argue was gerrymandered to flip from Republican to Democrat.
Gerrymandering has a long history in the United States, but the issue has gotten increasing attention as technology and data collection have grown more sophisticated and voters have become both more polarized and predictable, said Smith.
“As a result, it’s much easier to draw an effective, lasting gerrymander,” he noted. “We’ve seen a very significant increase in the degree of bias in the maps in this decade. And we think that in the next decade, if the court doesn’t act it, will get much, much worse.”
Upholding the maps in Wisconsin and Maryland allows them to be used during November’s midterm elections. Smith said his team hopes to get their case solved for the 2020 vote. Since maps are redrawn after each census, the legislature elected in 2020 will be responsible for redistricting.
How that process happens remains a point of debate.
“Since this is both a political and a state legislature issue, it is appropriate that they let the process stand,” Melvin Adams, chairman of Virginia’s 5th District Republican Committee, said in an email response to questions about the Court’s decision.
“Redistricting, right or wrong, occurs in every state based on political strength and changes with shifts in power.
“As to the way the voting maps are drawn in the fifth district,” he added, “they are not perfect, but they are. We will work with them.”
Virginia’s 5th congressional district, which includes all of Rappahannock County, stretches from the North Carolina border nearly to Maryland. The district has historically leaned Republican, with Rep. Tom Garrett winning by a 58-to-42-percent margin over his Democratic opponent in the 2016 election.
“There are certainly some very extreme gerrymanders in Virginia,” said Smith. “So there is a clear need for reform in that area.”
With the Court’s decision potentially delaying any action on gerrymandering ahead of the 2020 redistricting, “it’s important that citizens push the legislature to do a better job,” he added.
In the Wisconsin case, Smith and his team will now get to work adding evidence of individual harm at the district level, something he says can be easily resolved. And he’ll continue working on a case from North Carolina the could come before the Court in the coming weeks.
While the Court sidestepped any substantial decision on partisan gerrymandering on Monday, it left the issue open to further challenge. Whether the justices decide to take the North Carolina case could indicate how interested they are in continuing to look at the problem.
Regardless of how the Supreme Court rules in the future, Smith says, popular uprising is mobilizing on the issue.
States such as California and Arizona have independent non-partisan redistricting committees, and several state have measures on their ballots this year to establish them. One such committee in Virginia is non-profit OneVirginia2021.
“That is the ultimate solution,” said Smith.