Commentary: Don't Count On Supreme Court Resolving Gerrymandering Once & For All
Sometimes, when there is a hot-button issue before the nine justices of the U.S. Supreme Court, I am asked what I think the black-robed sages will do.
My answer is always the same.
Whatever a majority of them want to do.
The Supremes are, of course, the end of the line when it comes to interpreting the Constitution. They get the last word.
At least until some day in the future when a new Supreme Court decides to reverse the decisions of its predecessors.
Quite possibly by the end of this week, the justices will deal with a can that has been kicked down the road for two centuries now – the highly partisan and overtly political practice of the majority parties in the state legislatures to draw congressional district lines every 10 years.
Raise your hand if you are surprised that those legislative majorities almost always draw congressional district lines that favor their own political party.
What? No one out there raised their hands? I am shocked – shocked, I tell you.
It doesn't take a political science professor to figure this out: In Ohio, where the Republicans controlled the congressional redistricting process in 2011, after the last U.S. Census, a map was drawn that has in the past four congressional elections, resulted in 12 Republicans and four Democrats elected in each of those elections.
That's in a state where, in each of those elections, the votes cast for congressional candidates were split nearly 50-50 between Democrats and Republicans. Yet the Republicans won 75 percent of the House seats.
By the way, there is no question that had the Democrats been in control of the process in 2011, they would have attempted to do the same thing.
This partisan way of locking up congressional seats for the party in power is what prompted the A. Phillip Randolph Institute, the ACLU and others to file lawsuits saying the current system is unconstitutional.
Last month, a three-judge panel of the U.S. District Court for Southern Ohio voted unanimously that Ohio's system was unconstitutional.
The federal judges came to the conclusion that Ohio's current map is a mess, and is designed to set in stone GOP control of the congressional delegation for the foreseeable future.
Hamilton County was cited as a particularly egregious example of gerrymandering.
"They split Hamilton County and the city of Cincinnati in a strange, squiggly, curving shape, dividing its Democratic voters and preventing them from forming coherent voting blocks, which ensured the election of Republican representatives in District 1 and District 2," the judges wrote.
You might, if you wanted to be a smart aleck about it – and we do – call it The Steve Chabot Protection Act.
The district court ordered the legislature to fix it immediately, in time for the 2020 election, but the U.S. Supreme Court stepped in and ordered that the gerrymandering cases in Ohio and Michigan be halted until the high court can decide two similar cases that were first in line – North Carolina and Maryland.
Those are the decisions we could see by the end of the week.
Mark R. Weaver, a Republican political strategist and attorney in Ohio, told WVXU that it is entirely possible that the Supreme Court could throw out the North Carolina and Maryland cases based on a principle of law known as the political doctrine. In short, it says that the state legislatures should be the ones making decisions on political issues, not the courts.
And gerrymandering is most certainly a political issue.
If a majority of the Supreme Court decides to punt on North Carolina and Maryland, then the Ohio case declaring the present system unconstitutional would be dead in the water, as would Michigan's case.
"That would be the end of things as far as Ohio is concerned," Weaver said.
Daniel P. Tokaji is a professor at the Ohio State University's Moritz College of Law and a nationally known expert on election law.
Tokaji told WVXU he thinks it is impossible to predict which side the Supreme Court will come down on.
"The only thing I can say with any degree of certainty is that, whatever they do, it will be a 5-4 vote,'' Tokaji said.
Tokaji said he doesn't see how any reasonable person could look at what the Republicans in the Ohio legislature did with congressional districts in 2011 and not know why they did it.
"There's just no doubt what the Republicans intended to do,'' Tokaji said. "They wanted to minimize the influence of Democratic voters in Ohio."
Both Tokaji and Weaver agree if the U.S. Supreme Court decides that it has no business getting involved in the drawing of congressional district lines, Ohio has a back-up plan.
In the May 2018 primary in Ohio, 75 percent of Ohio voters voted in favor of Issue 1, a new map-making method that would take effect in 2022, after the next U.S. Census.
After the 2020 Census, lawmakers will learn how many seats Ohio will get in the U.S. House based on population. It's entirely likely that Ohio will lose one seat due to population loss, dropping the total to 15.
After that, the legislators will get down to the business of dividing Ohio into districts. For that map to last for 10 years, it must be approved by 60 percent of the Ohio House and Senate, including at least one-half of the members of the minority party – which, almost certainly, will be the Democrats once again.
If the legislators can't agree, the decision will go to a seven-member commission that includes the governor, the auditor, the secretary of state and four legislators – two from each of the major political parties.
If that group can't decide, it shifts back to the legislature, which will then operate under more strict rules for coming up with a plan.
In other words, drawing a map under Issue 1 could take a while.
And even then, it doesn't sound like a very non-partisan plan, no matter what the courts want Ohio to do.
A previous version of this article said Wisconsin currently has a gerrymandering case before the Supreme Court. It is not Wisconsin; it is North Carolina. The article also said Issue 1 passed in May 2010. Issue 1 passed in May 2018.