The U.S. Supreme Court rejected challenges against two congressional maps in Maryland and North Carolina on Thursday, deciding that questions of partisan gerrymandering are outside the scope of courts.
Their decision likely spells the end for a similar challenge out of Ohio, whose congressional maps were ruled an "unconstitutional partisan gerrymander" by a lower court.
Consequences In Ohio
Voting rights groups challenged Ohio's congressional maps with the argument that GOP state lawmakers crafted a set of boundaries that would ensure Republicans controlled the majority of seats. Since maps were redrawn following the 2010 census, Republicans have maintained a 12-4 seat advantage in Ohio’s congressional delegation.
A district court panel sided with the challengers on three different claims tied to the First and Fourteenth amendments, throwing the congressional map out as unconstitutional. The judges ordered a new map drawn by June 14. After an appeal from Ohio Attorney General Dave Yost, the U.S. Supreme Court issued a stay halting that action while it considered the cases out of North Carolina and Maryland.
In a 5-4 decision written by Chief Justice John Roberts, the court held that "there are no legal standards discernible in the Constitution for making such judgments." Instead, Roberts writes that it's up to states or Congress to establish laws governing redistricting.
"Our conclusion does not condone excessive partisan gerrymandering," Roberts insists. "Nor does our conclusion condemn complaints about districting to echo into a void."
The Supreme Court's decision sends both the Maryland and North Carolina cases back to lower courts, saying they should be dismissed due to lack of jurisdiction. The court may do the same for Ohio's challenge, as well.
Ohio's Republican leaders hailed the ruling as a victory.
"Ohio voters already elected to redesign our line-drawing process by a Constitutional Amendment," wrote Attorney General Dave Yost, who defended Ohio's map in court. "Power to legislate belongs to the legislature, or to the people - not to the courts."
"This comes as no surprise," writes Ohio House Speaker Larry Householder, one of the defendants in the Ohio case. "I appreciate the court confirming that Ohio's congressional map is valid and constitutional. The court confirmed, as we have said all along, this is not a question for the court but a political question that is properly left to the states."
Democrats and voting rights groups, unsurprisingly, had the opposite reaction.
"In Ohio, this means that in the 2020 election, the map, rather than the electorate, will once again determine who occupies each of our Congressional seats," writes ACLU of Ohio legal director Freda Levenson in a statement.
Ohio House Minority Leader Emilia Sykes (D-Akron) said the ruling "is a step back in the fight against unfair districts," while Ohio Democratic Party chair David Pepper called the decision "disappointing."
"But it doesn't alter the factual finding of the U.S. Southern District of Ohio: that Republicans have cynically and secretly rigged Ohio elections for a decade," Pepper writes.
Behind The Ruling
Thursday's decision stemmed from two cases in Maryland, where Democrats were responsible for eliminating GOP congressional seats, and North Carolina, where Republicans used similar tactics to limit Democratic power.
From the outset, state officials argued the courts shouldn’t wade into questions about partisanship in map drawing. In Ohio, officials also pointed to Democratic state lawmakers voting in favor of the map at the time as evidence against a partisan process.
Challengers in several states, including Ohio, have proposed a three-fold test for legislative maps, pulled from racial gerrymandering rulings. That test asks whether there was partisan intent, partisan effect, and whether those two are outweighed by some legitimate legislative purpose.
The Supreme Court's majority, however, drew a big distinction between racial and partisan gerrymandering.
"A permissible intent— securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent 'predominates,'" Roberts writes.
Writing on behalf of the liberal judges, Justice Elena Kagan envisions placing potential maps on a kind of spectrum of political outcomes to show how far boundaries deviate from the median. But Roberts contends the court isn't equipped to decide what is out of bounds.
"There is no way to tell whether the prohibited deviation from that map should kick in at 25% or 75% or some other point," Roberts writes. "The only provision in the Constitution that specifically addresses the matter assigns it to the political branches."
Kagan concludes the minority opinion with her own note of disappointment.
"The practices challenged in these cases imperil our system of government," Kagan writes. "Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."
What Happens Next
Despite giving a pass to partisan gerrymandering, Roberts noted that state legislators and ballot issues can establish their own redistricting rules, and that Congress could do the same. Those benchmarks could then provide the framework for future judicial decisions.
Ohio voters have already taken that step. The state's congressional and state legislative maps will be redrawn one way or another following the 2020 Census, under new sets of guidelines approved in 2018 and 2015, respectively.
The state constitutional amendments, which won the backing of some voting rights advocates, would create a bipartisan process for redistricting and establish strict rules for district lines.
"Thanks to Ohio voters, and no thanks to the Supreme Court, the corrupt practice of gerrymandering remains in its final days in Ohio," Pepper writes. "Ohio's Constitution requires fair districts for '22."
The League of Women Voters, which brought the lawsuit against Ohio, said in a letter to members that it will now focus on that upcoming redistricting process.
"With robust public participation in that process, we will hold legislators accountable and demonstrate that all Ohio voters - Republican, Democrat, and Independent - want fair maps," writes executive director Jen Miller.
Secretary of State Frank LaRose also struck a conciliatory note, highlighting Ohio's successful push for redistricting reform.
"Thanks to that effort, soon Republicans and Democrats will begin working for the first time as true partners in the effort to fairly draw congressional districts," LaRose said in a statement. "I look forward to continuing to work with our county board of elections to administer fair, accurate and secure elections across our great state."
