Partisan speculation about how a Supreme Court nominee will rule is routine, but it appears that President Trump’s choice for SCOTUS could mark the end of efforts to end gerrymandering of congressional districts via the federal court system.

The retirement of Justice Anthony Kennedy struck a blow for the prospects of redistricting reform, as he represented the swing vote who could turn the tables. But Trump’s nomination of Brett Kavanaugh, labeled by some legal experts as a justice who would serve as the second-most conservative member of the court, behind only Clarence Thomas, certainly could mark a dark turning point for election reform.

Stoic supporters of a nonpartisan approach that would end the zig-zagging lines on district maps say that perhaps Chief Justice John Roberts will embrace the swing-vote status on the high court regarding legal claims of rigged gerrymanders. Not likely, given Roberts’ recent written opinions.

Big stakes in Michigan

In Michigan, we have a big stake in all of this on two fronts.

One of the cases pending before SCOTUS argues that our GOP-controlled Legislature drew the current districts – for Congress, the state House and the state Senate – to ensure that the GOP scored maximum success at the ballot box.

Second, the Michigan ballot proposal tentatively set for a November statewide vote, which would put the decennial process of drawing districts into the hands of an independent commission, could be all for naught.

Some supporters of a fairer redistricting process tend to forget that Kennedy was the justice who stood in the way of a recent court ruling that independent redistricting commissions at the state level are unconstitutional.

In 2015, the Supreme Court rejected a claim by Arizona’s Republican-led Legislature that the constitution gave it sole authority over redistricting maps, and that a ballot initiative that shifted the task to a nonpartisan citizens commission was illegal. Kennedy joined the court’s four liberals in the 5-4 ruling, preventing a victory for the old-school politicians.


Independent commissions currently operate in six states and at least four more states, including Michigan, will have ballot proposals in November to follow that path. It doesn’t take a great leap in logic to conclude that Kavanaugh, if confirmed by the U.S. Senate, could provide a future deciding vote to wipe out all nonpartisan redistricting in states that have adopted reforms.

Just prior to Kennedy’s announced retirement, some advocates fighting gerrymandering had already given up on Kennedy as the justice who would turn the tide. On June 18, with Kennedy as part of the majority, the Supreme Court punted on key cases from Wisconsin (where Republicans are the villains) and Maryland (where Democrats are the villains) that could have set standards for fair district boundaries. One case was tossed out on technical grounds, and the other was sent back to a lower court.

At the time, the Michigan group of volunteers known as Voters Not Politicians, which ran the successful petition drive for the November ballot proposal, put the best face on those SCOTUS decisions. If the Supreme Court continues to kick the can down the road, they said, state-by-state reforms will prevail.  

“The U.S. Supreme Court is leaving it up to states to decide how they will address what President Ronald Reagan called a ‘great conflict of interest’ that exists when politicians draw congressional and legislative districts, as they do here in Michigan,” said Katie Fahey, founder and director of Voters Not Politicians.

Yet, the group still faces a court challenge at the state level before it is free and clear to start campaigning for their ballot proposal. Pro-GOP opponents of the initiative, led by the Michigan Chamber of Commerce, have appealed to the state Supreme Court after their efforts at the lower court level to bounce the ballot proposal failed.

As for the naïve attempts by some anti-gerrymandering activists to put their faith at the federal level in Chief Justice Roberts, it was Roberts who wrote the 2015 dissenting opinion in that 5-4 Arizona ruling on independent commissions. He wrote the majority opinion when the court in June dismissed the Wisconsin and Maryland cases on procedural grounds.

And during October oral argument in one gerrymandering case, he expressed concern that the court’s reputation would suffer if it weighed in on partisan gerrymandering because the public would see the justices as favoring one party over the other. At a time when data-driven, high-tech tools have surfaced to offer alternative maps and to pinpoint partisan bias in existing district boundaries, Roberts dismissed these approaches as “sociological gobbledygook.”

‘Potentially crippling’ effect

No surprise, then, that some political observers see the likely SCOTUS transition from Kennedy to Kavanaugh as fairly devastating to the anti-gerrymandering movement.

“The drive to set a standard for unconstitutional partisan gerrymandering may have met its end,” one analyst said.

“I think our odds plummeted” said another.

A third said the changes on the court present “a potentially crippling threat” to the campaign to create more objective elections.

Yet, North Carolina’s brazen approach to redistricting, with squiggly district lines working their way across the entire state, might provide a breakthrough.

The next legal challenge to partisan gerrymanders likely will come next year after a three-judge panel ruled in January that North Carolina’s 13 U.S. House districts were unconstitutional.

These are some of the most gerrymandered districts in the U.S.

For voting-rights advocates, there is no better case to take to the Supreme Court because few technicalities are at issue and members of North Carolina’s Republican-dominated legislature boasted openly that they had drawn the districts to achieve maximum partisan advantage over Democrats.

At a legislative hearing, questions were raised about old district lines that resulted in a 7-5 advantage for Democrats in the state’s congressional delegation vs. new lines that somehow converted North Carolina into a solid, 10-3 state in favor of Republicans.

One GOP lawmaker who had a hand in drawing the maps, openly indicated that the districts were drawn “to gain partisan advantage.”

When he was questioned about why the state went from 7-5 for Democrats to 10-3 Republicans, his response was:

“I do not believe it’s possible to draw maps that would result in 11 Republicans and two Democrats.”