With Justice Antonin Scalia writing, the Supreme Court has unanimously ruled that a challenge can proceed in federal court arguing that Maryland’s ridiculous, convoluted Congressional redistricting map violates the Constitution by harming some voters based on their political views. In general, the high court has declined to disturb partisan gerrymanders, no matter how flagrant, so long as they otherwise comply with equal population requirements and the federal Voting Rights Act. The rationale for this position has been that the Court could not identify any principled standard to apply that would not draw it into a multitude of political disputes.
Yesterday’s unsurprising decision rests solely on a narrow procedural point – whether the claim as not “obviously frivolous” deserves to proceed to a three-judge panel, rather than being thrown out by a single judge – which augurs little about whether the Court has changed that view. The Court has signaled continued interest in redistricting, however, by accepting two other merits cases for argument this term, Wittman v. Personubhallah from Virginia and Harris v. Arizona Independent Redistricting Commission. These are in addition to the just-argued case of Evenwel v. Abbott, discussed this morning by colleague Ilya Shapiro (no relation to Steve Shapiro, plaintiff in the Maryland case).
Meanwhile, state interest in redistricting reform is gaining steam. Last month, Ohio voters overwhelmingly approved a plan to draw state legislative districts by nonpartisan commission, an idea that has advanced in a number of other states in recent years, especially out West.
I’ve had a chance to grapple with these issues myself this fall, because Maryland Gov. Larry Hogan was generous enough to appoint me as a private citizen as co-chair of his bipartisan Maryland Redistricting Reform Commission, created by executive order in August. After three months of hearings, research, and workshops, we filed our report last month, calling for Maryland to adopt an independent citizen commission format similar to California’s pioneering model, but simplified and adapted to fit our smaller state and its institutions. While libertarians have paid only sporadic attention to gerrymandering over the years, the practice exemplifies the manner in which self-serving use of government power can entrench and insulate a political class, enabling it to withstand discontent and correction from voters.
The progressive group Envision Frederick County invited me to share my thoughts on the issue at greater length. Those thoughts, of course, represent my views alone, not those of anyone else at the Cato Institute. You can read them here, as well as the entire report of the governor’s commission. I hope they represent steps onward and upward to a fairer and more effective system of representation, both in Maryland and in other states afflicted by gerrymandering.