When courts draw maps, do they gerrymander?

Question

It's well known that when legislatures draw maps, the majority protects members of their own party. When courts do maps, do they do the same thing? If so, what are some modern-day examples where a state's conservative (liberal) majority drew a Republican (democratic) gerrymander when they were given the power to draw the map?

Answer 1

When courts draw maps, do they gerrymander?

Courts do not draw maps, though they have authority to invalidate maps drawn.

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2 U.S. Code § 2c. Number of Congressional Districts; number of Representatives from each District

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ...

It is required for any state with more than one Representative, that state will have a law for the purpose of dividing the state into districts. How this is done is left to the legislature of that state. The legislature may perform the redistricting itself (most do) or assign the redistricting to an independent body.

Redistricting commission

In Arizona, the Arizona Commission on Appellate Court Appointments, chaired by the chief justice of the Arizona Supreme Court, selects the members of the Arizona Independent Redistricting Commission.

In New Jersey, the state's Supreme Court chooses one member.

In Washington, the state Supreme Court, if necessary, selects a non-voting member to chair the commission.

In no case does any court involve itself directly with the redistricting decisions made by these commissions. The court becomes involved only when a complaint is filed with the court.

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In response to comments:

Courts may adopt maps drawn by others, as a remedy. That does not mean the court actually uses the census data to decide on its own where district lines will be drawn. Narrowly, "Courts do not draw maps".

The courts rely on plaintiffs and defendants, their arguments, and advisors to submit alternatives, from which the court decides. With 2 U.S. Code § 2c in mind, courts have no power to "establish[] by law" what the districts will be, but can require the state to amend its law to match the courts decision.

Following are excerpts from the 2018 Pennsylvania gerrymandering case.

This Court recognized that the primary responsibility for drawing congressional districts rested squarely with the legislature, but we also acknowledged that, in the eventuality of the General Assembly not submitting a plan to the Governor, or the Governor not approving the General Assembly's plan within the time specified, it would fall to this Court expeditiously to adopt a plan based upon the evidentiary record developed in the Commonwealth Court.

Neither the General Assembly nor the Governor sought an extension of the dates set forth in our January 22 Order. The General Assembly failed to pass legislation for the Governor's approval, thereby making it impossible for our sister branches to meet the Court's deadline. As a result, it has become the judiciary's duty to fashion an appropriate remedial districting plan, and this Court has proceeded to prepare such a plan, a role which our Court has full constitutional authority and responsibility to assume.⁶

After full deliberation and consideration, the Court hereby adopts this remedial plan ("Remedial Plan"), as specifically described below, which shall be implemented forthwith in preparation for the May 15, 2018 primary election. The Remedial Plan is based upon the record developed in the Commonwealth Court, and it draws heavily upon the submissions provided by the parties, intervenors, and amici.

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⁶ When the legislature is unable or chooses not to act, it becomes the judiciary's role to ensure a valid districting scheme. As explained in our Opinion, our Court possesses broad authority to craft meaningful remedies when required. Pa. Const. art. V, §§ 1, 2, 10; 42 Pa.C.S. § 726 (granting power to "enter a final order or otherwise cause right and justice to be done"). Thus, the prospect of a judicially-imposed remedial plan was well within our judicial authority, and is supported by our Constitution and laws.