The GOP Ignores John Roberts’s Redistricting Advice

The latest redistricting moves out of Virginia and California suggest that the GOP could wind up with the short end of the stick in the partisan gerrymanders timed to this year’s midterms. Republicans sparked this contest by redrawing voting maps in the Lone Star State. Yet on this head the Democrats seem to be getting the better of the GOP. The moment could be ripe to mark some advice from Chief Justice Roberts on Congress’s role in barring gerrymanders.The Supreme Court on Wednesday declined to intervene over the Coast Democrats’ new map, designed to cost the GOP five House seats, negating the Texas map’s gains for Republicans. Virginia Democrats, our Matt Rice reports, are eyeing a revise that would trim four GOP seats from the commonwealth’s map. Some predominantly GOP states are weighing map changes, too, in what USA Today calls “the biggest flurry of mid-decade redistricting since the 1800s.”The mapping muddle calls to mind the chief justice’s majority opinion in Rucho v. Common Cause. That’s the case in which the Nine in 2019 held that federal courts lacked power per the Constitution to overrule states using gerrymandering to give a political party an advantage at the polls. This is not to say the high court took a favorable view of gerrymanders. Congress, though, per the chief justice, had the power to bar such scourges of partisanship.In Rucho, Chief Justice Roberts wrote that “excessive partisanship in districting leads to results that reasonably seem unjust.” Even so, the high court found that state decisions over map-drawing amount to a “political question” in which federal courts have no role to play, at least when it comes to the partisan complexion of the voting districts. Courts can intervene in the event of, say, racial bias or uneven populations among districts, the Nine held.Yet in what could be seen as a kind of recommendation to lawmakers, Chief Justice Roberts added in Rucho that Congress has the authority to address partisan gerrymanders. The Framers, he wrote, “addressed the election of Representatives to Congress in the Elections Clause.” Article I of the Constitution gives the state legislatures authority to set the “Times, Places and Manner of holding Elections” to Congress. The federal legislature, Chief Justice Roberts wrote in Rucho, has power under the parchment to “make or alter” state policies on this head. There was debate over this language during the Constitutional Convention, the chief noted. Some Founders who were “opposed to such congressional oversight moved to strike” the authority from Congress. “Madison came to its defense,” however, the chief asserted. “State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency or prejudices,” Madison said then. That warning resonates today at, say, Austin and Sacramento. Federalists touted this power of Congress during ratification debates, the chief added, suggesting it would help “to counter state legislatures set on undermining fair representation, including through malapportionment.”Congress has used its power to prevent gerrymanders, Chief Justice Roberts wrote. In 1842, an Apportionment Act required districts to be “composed of contiguous territory.” A law in 1911 required “districts composed of a contiguous and compact territory.” That policy was reversed in 1929, though, which paved the way for today’s wave of ever-more intricate district maps — and increasingly politically-animated gerrymanders. Capitol Hill Republicans, as of yet, show no sign of any appetite to follow the course set forth by the chief justice on barring partisan gerrymanders. The chief may have cautioned that “judges are not politicians” and “it’s my job to call balls and strikes.” Yet the occasional forays into the partisan scrum have tended to be ignored, making him what we’ve called “Washington’s least-heeded political strategist.” The failure of the GOP to heed his advice could be costly.

The GOP Ignores John Roberts’s Redistricting Advice

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