gerrymandering

Reporting from Washington — The Supreme Court on Thursday upheld highly partisan state election maps that permit one party to win most seats, even when most voters cast ballots for the other side.

Partisan gerrymandering has allowed Republicans to control power in several closely divided states. And it has been repeatedly condemned for depriving citizens of a fair vote and letting politicians rig the outcomes.

But Chief Justice John G. Roberts Jr., speaking for a 5-4 conservative majority, ruled that citizens may not sue in federal court over the issue.

Partisan gerrymandering claims “present political questions beyond the reach of federal courts,” he said, tossing out lower court rulings that North Carolina’s Republicans and Maryland’s Democrats had drawn skewed districts to entrench their party in power.

Although the Supreme Court has repeatedly said racial gerrymandering is unconstitutional, it has never struck down an election map because it was unfairly partisan, despite four decades of lawsuits over the issue.

Thursday’s decision goes even further, closing the courthouse door to future claims. “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,” he wrote in Rucho vs. Common Cause.

The court’s four liberal justices dissented, warning that new technology has made partisan gerrymandering easier and more precise than ever before.

“These are not your grandfather’s — let alone the framers’ — gerrymanders,” Justice Elena Kagan said.

“The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” she said, reading her dissent in the court. “Of all the time to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government.”

The ruling substantially raises the stakes for the 2020 election. In many states, whichever party controls the state legislature and the governor’s office at that time will be in a prime position to gerrymander electoral districts in their favor and lock in political power for years to come.

“This is obviously a deeply disappointing outcome,” said Allison Riggs, a voting rights lawyer who represented the League of Women Voters in the North Carolina case. There, the state’s Republican leaders drew an election map that aimed to lock in 10 of 13 seats for the GOP.

“Unlike citizens in some other states, North Carolinians cannot force redistricting reform upon recalcitrant legislators,” Riggs said. “We must raise our voices even more loudly, demanding change.”

While reform advocates were distraught over the decision — envisioning an era of ruthless, no-holds-barred gerrymandering — there is reason to believe the result may not be as drastic as feared.

Numerous states, including California, have taken the line-drawing process away from politicians and placed it in the hands of independent commissioners charged with drawing fair and competitive political maps.

Roberts appeared to endorse these state reforms, even though he voted in dissent four years ago in an Arizona case to strike down these voter initiatives as improper. He said then the power to draw election districts was reserved to the state legislature alone.

“Where we go from here is where we’ve been,” said Justin Levitt, an election law expert at Loyola Law School in Los Angeles. “Most of the real action has been in state courts or through ballot initiatives. … We are back to a limited set of tools, but tools that are still immensely powerful.”

States are also getting more involved. He noted that state supreme courts in Pennsylvania and Florida have struck down maps as overly partisan. The Supreme Court’s decision blocks federal lawsuits over gerrymandering, but it does not alter the authority of state courts to make rulings based on their own state constitutions. In 2018, voters in five states — Colorado, Michigan, Missouri, Ohio and Utah — overhauled their redistricting processes by creating independent or bipartisan map-drawing commissions.

This year’s cases began with the 2010 midterm elections, in which Republicans won sweeping victories and took full control in politically divided states such as Pennsylvania, Ohio, Michigan, Wisconsin and North Carolina. Armed with new census data, GOP lawmakers drew election maps that all but guaranteed their candidates would win a majority. In Pennsylvania, Republicans won 13 of 18 congressional seats, and 12 of 16 in Ohio.

Last year, however, political reformers had high hopes that Justice Anthony M. Kennedy would join the four liberals and cast the crucial fifth vote against partisan gerrymandering. He had voiced repeated concern that voters were being cheated if politicians could decide the outcomes in advance.

But those hopes were dashed last June when the chief justice engineered a procedural ruling that scuttled a gerrymandering case from Wisconsin.

Kennedy then retired, and his replacement, Justice Brett M. Kavanaugh, cast the fifth vote with Roberts on Thursday to close the doors to these claims.

Justices reviewed two cases in reaching the decision.

In North Carolina, Republican leaders flatly admitted they drew an election map for “partisan advantage.” One state leader said he drew a map to give Republicans a 10-to-3 advantage, only because he could not devise a map that would yield an 11-to-2 advantage.

In Maryland, Democratic leaders shifted hundreds of thousands of voters with the aim of ousting a veteran Republican from Congress and creating a reliably Democratic district.

A three-judge court in North Carolina declared the election map unconstitutional and said it deprived Democrats of a fair vote. Another three-judge panel ruled Maryland’s Democrats deprived Republicans of a fair vote and free election.

In January, the justices agreed to hear appeals from both states. Last month, the court also put on hold gerrymandering rulings from Ohio and Michigan.

The chief justice wrote one opinion for the two cases and overturned the rulings from North Carolina and Maryland. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh signed on to the Roberts opinion.

Joining Kagan in dissent were Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

More stories from David G. Savage »

Former Gov. Arnold Schwarzenegger, who championed the creation of an independent commission to draw California’s congressional districts, returns to state voters’ TV sets on Tuesday in a new ad opposing a November ballot measure by state Democrats to boost their party’s ranks in Congress.

A committee opposing Proposition 50, which would replace districts drawn by an independent commission with ones crafted by partisans, plans to spend $1 million per day airing the ad statewide. Schwarzenegger describes the ballot measure as one that does not favor voters but is in the interest of entrenched politicians.

“That’s what they want to do is take us backwards. This is why it is important for you to vote no on Proposition 50,” the Hollywood celebrity and former governor says in the ad, which was filmed last week when he spoke to USC students. “The Constitution does not start with ‘We, the politicians.’ It starts with ‘We, the people.’ … Democracy — we’ve got to protect it, and we’ve got to go and fight for it.”

Redistricting is the redrawing of congressional boundaries that typically occurs once a decade following the U.S. census to account for population shifts. The process rarely attracts the attention it has this year because of a heated battle to determine control of a closely divided Congress in the final two years of President Trump’s tenure.

After Trump urged Texas and other GOP-led states to redraw their congressional districts earlier this year to boost the number of Republicans in the House, California Democrats, led by Gov. Gavin Newsom, countered by putting a rare mid-decade redistricting on a special-election November ballot that would likely boost the number of Democrats in the body.

Schwarzenegger, long a champion of political reform, is not part of any official Proposition 50 campaign. Since leaving office, he has prioritized good governance at his institute at USC and campaigned for independent redistricting across the nation.

His remarks were filmed, and the ad is being aired by the most well-funded effort opposing Proposition 50, which is bankrolled by Charles Munger Jr., a major GOP donor who underwrote the ballot measures that created California’s independent commission.

Munger has already donated $30 million to a campaign opposing the November ballot measure, according to fundraising disclosures filed with the secretary of state’s office. The other large opposition effort has raised more than $5 million. The main group supporting Proposition 50, led by Newsom, has raised more than $54 million.

These fundraising figures are based on required disclosures of large contributions. More complete fundraising numbers must be filed with the state on Thursday.

Former Gov. Arnold Schwarzenegger spoke out forcefully Monday against the partisan effort to redraw California’s congressional districts that voters will decide in a November special election.

“They are trying to fight for democracy by getting rid of the democratic principles of California,” Schwarzenegger told hundred of students at an event celebrating democracy at the University of Southern California. “It is insane to let that happen.

The Hollywood action star turn Republican governor urged the students to vote against the redistricting measure, Proposition 50.

The special election in November would redraw the districts and probably boost the number of Democrats California sends to Congress, an effort championed by Gov. Gavin Newsom to counter efforts in GOP-led states such as Texas to send more Republicans to the U.S. House of Representatives.

Schwarzenegger has long championed political reform. During his final year as governor, he prioritized the ballot measure that created independent congressional redistricting. Four former members of the independent commission were recognized by Schwarzenegger at the event, and he had lunch with them and members of the university’s student governmentafterward.

He said he grew interested in the esoteric process of redistricting when he was governor and realized that districts drawn by politicians protected their political interests instead of voters.

“They want to dismantle this independent commission. They want to get rid of it under the auspices of we have to fight Trump,” Schwarzenegger said. “It doesn’t make any sense to me because we have to fight Trump, [yet] we become Trump.”

Since leaving office, Schwarzenegger has prioritized good governance at his institute at USC and campaigned for independent redistricting across the nation. The governor’s remarks were being recorded by the anti-Proposition 50 campaign in what could easily be turned into a television ad.

Outside, student Democrats passed out fliers in support of Proposition 50.

The event, a discussion with USC Interim President Beong-Soo Kim marking the International Day of Democracy, was scheduled to take place before conservative activist Charlie Kirk was fatally shot last week while speaking at a Utah college campus.

Schwarzenegger reflected on Kirk’s death as he warned about the fragile state of democracy.

“That someone’s life was taken because they had a different opinion, I mean it’s just unbelievable,” Schwarzenegger said, noting that Kirk was a skilled communicator who connected with young people, even those who disagreed with him. “A human life is gone. He was a great father, a great husband, and I was thinking about his children — they will only be reading about him now instead of him reading to them bedtime stories.”

He warned that the nation’s political climate was spiraling.

“We are getting hit from so many angles and we have to be very careful we don’t get closer to the cliff. When you fall down there, there is no democracy,” Schwarzenegger said, blaming social media, the mainstream media and the political parties for dividing Americans. “It’s very important that we turn this around.”

He urged the hundreds of students who attended the event to show that people can disagree politically without demonizing one another.

Gov. Gavin Newsom made a ballsy threat this week to Texas legislators who are trying to gerrymander voting maps in favor of Republicans.

“Whatever they are doing will be neutered here in the state of California, and they will pay that price,” Newsom said. “They’ve triggered this response. And we’re not going to roll over, and we’re going to fight fire with fire.”

The “we” in that sentence is you, California voters, who may soon be asked to fix the Texas menace via the ballot box. If Newsom has his way, voters in November would face some version of an if/then question: “If Texas cheats on their voting maps, then (and only then) should California cheat on ours?”

In these days of creeping authoritarianism, it’s a fair query, but also one rife with personal interests and risks large enough to remake American democracy, or even inadvertently crush it.

But such is the state of our union that even those determined to preserve it are ready to throw out its basic tenets — myself included, sort of — and cause a national kerfuffle by considering remaking voting maps to supposedly benefit, if not a party, democracy as a whole.

“This is something that we have just never seen before, right?” Mindy Romero told me Tuesday. She’s an assistant professor and the founder of the Center for Inclusive Democracy at USC’s Sol Price School of Public Policy.

Romero is against gerrymandering, but also agrees that we are in “unprecedented times,” a phrase that doesn’t seem to do justice to the daily trampling of democratic safeguards by our president.

Most of you are aware by now that the Texas Legislature, allegedly after pressure from President Trump, is contemplating redrawing its voting maps in the hopes of scooping up more seats for Republicans in Congress during the 2026 midterms — the very election that Democrats are praying will deliver them control of at least one chamber.

With the possibility that this Texas two-step could hand Trump an even more solidly compliant Congress, Newsom has come up with a plan to gerrymander our own maps. But to make it (hopefully) legal, he needs voters to go along with it because this ain’t Texas, and we don’t ignore rules. We bend them.

Whoever thought redistricting could be this exciting? But stay calm, redistricting nerds: It remains boring to the majority of voters, which is both the problem and the brilliance of the plan — you have to engage voters, but also not so much that they think too deeply.

The difference between Texas and California is our ballot initiative process, which would ultimately make voters responsible for any gerrymandering here. In Texas, it’s backroom stuff.

But will voters go for it? For many, it will come down to simple choices that miss the complexity of what is being asked: California vs. Texas, Newsom vs. Trump, democracy vs. authoritarianism.

Romero warns that once you smash a norm, even for a virtuous reason, it’s hard to get it back. She worries that despite Newsom’s claim that the rigged maps would disappear in 2030, the gerrymandering might remain.

California has one of the best systems in the country right now for nonpartisan redistricting, with an independent commission that draws lines without regard to party.

It was put in place because decades of gerrymandering left voters disenchanted.

In the 1980s, political icon Phillip Burton allegedly wrangled an infamous gerrymander that still shows just how bad things could be. He did it in part to protect the seat of his brother, John Burton ( a colorful fellow who served in both the state Legislature and Congress before becoming chair of the California Democratic Party) creating a district that wound around the Bay Area in a nonsensical fashion to scrape up the necessary votes.

“Oh, it’s gorgeous,” Phillip Burton described that questionable territory to the Washington Post at the time. “It curls in and out like a snake.”

That was just the way business was done before our redistricting commission was put in place in 2008, with a hefty push by then-Gov. Arnold Schwarzenegger, who remains a vocal critic of gerrymandering and who has vowed to fight Newsom’s plan.

But that nonpartisan system was hard won, and in reality, neither party really loved the idea.

“We’ve gone through this and in cooler times,” Romero pointed out. “The Democrats and the Republicans in California did not want independent redistricting. Let’s make that clear. But a lot of people came together and worked towards this.”

So while any upcoming ballot measure will likely focus on the righteousness of fighting fire with fire, it’s also true that the Democratic party and some Democratic politicians would hope to reap personal gain from such a vote.

As much as this might be about saving democracy, politics is always about personal and party gain. Some California state legislators would surely desire to win a newly drawn seat in Congress. And, of course, there are Newsom’s political ambitions.

“It’s really difficult to disentangle people that may be sincerely scared for our democracy” from those “that may be jumping on this, seeing it as a political opportunity. And I think we have to be really honest about that,” Romero said.

That’s the choice that voters will ultimately be asked to make.

But we also can’t ignore the precarious nature of the times, and the reality that our checks and balances are disintegrating. Do we save election integrity and maybe risk democracy, or try to save democracy and risk election integrity?

Two paths lead into the dark. Do voters follow Newsom or Trump?