8
RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
And partisan gerrymandering can make it meaningless.
At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” Vieth v.
Jubelirer, 541 U. S. 267, 317 (2004) (Kennedy, J., concurring in judgment) (internal quotation marks omitted). By
drawing districts to maximize the power of some voters
and minimize the power of others, a party in office at the
right time can entrench itself there for a decade or more,
no matter what the voters would prefer. Just ask the
people of North Carolina and Maryland. The “core principle of republican government,” this Court has recognized,
is “that the voters should choose their representatives, not
the other way around.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___
(2015) (slip op., at 35) (internal quotation marks omitted).
Partisan gerrymandering turns it the other way around.
By that mechanism, politicians can cherry-pick voters to
ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people.” 4 Annals
of Cong. 934.
The majority disputes none of this. I think it important
to underscore that fact: The majority disputes none of
what I have said (or will say) about how gerrymanders
undermine democracy. Indeed, the majority concedes
(really, how could it not?) that gerrymandering is “incompatible with democratic principles.” Ante, at 30 (quoting
Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).
And therefore what? That recognition would seem to
demand a response. The majority offers two ideas that
might qualify as such. One is that the political process
can deal with the problem—a proposition so dubious on its
face that I feel secure in delaying my answer for some
time. See ante, at 31–33; infra, at 29–31. The other is
that political gerrymanders have always been with us.
See ante, at 8, 24. To its credit, the majority does not
frame that point as an originalist constitutional argument.