Among major democracies, only in the United States are self-interested politicians given the exclusive power to design election districts for themselves and their allies. Other countries lodge this power with independent commissions. In the absence of such institutions, the pressure for courts to impose constitutional constraints on partisan gerrymandering becomes powerful, particularly as the manipulation of electoral districts for partisan advantage has become more brazen, more extreme, more effective and more consequential. Decisions on two cases Monday by the Supreme Court — an alleged Republican gerrymander in Wisconsin and a Democratic one in Maryland — shut down one novel approach to attacking partisan gerrymanders on constitutional grounds.
But the court did not address the fundamental question of whether it is constitutional to move voters in and out of election districts based on their political viewpoints for the purpose of enabling the party in power to control more seats than it would under a neutral plan. A three-judge federal court has already held that North Carolina did exactly that, violating the Constitution in redrawing its congressional districts.
In its next term, the court might well review that decision and confront this key question. So far, the Supreme Court has never struck down an election district or redistricting plan redistricting court as an unconstitutional political gerrymander.
In the Wisconsin case, the court unanimously rejected the attempt to challenge a statewide redistricting plan as a whole. The plaintiffs argued that the overall effect of the plan, as well as its intent, was to give Republicans a far greater share of the seats in the State Legislature than they would have received under a neutral or nonpartisan plan.