On Thursday morning, the supreme court voted 5–4 to withdraw from questions of partisan gerrymandering, with the court’s five most conservative justices in the majority. The ruling effectively gives states the ultimate power to decide on the legality of voting maps, and leaves in place extreme cases of partisan redistricting in states such as Maryland and North Carolina.

In a powerful dissent, an edited extract of which appears below, Justice Elena Kagan, together with the courts’ three other more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, and Sonya Sotomayor – claimed the court has abdicated its duty to protect the US constitution and American democracy.

‘Partisan gerrymanders have debased and dishonored our democracy’

For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.

In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.

Those standards satisfy the majority’s own benchmarks. They do not require – indeed, they do not permit – courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards do allow – as well they should – judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms.

In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

‘Is this how American democracy is supposed to work?’

Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core.

After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.

So it is necessary to fill in the gaps. To recount exactly what politicians in North Carolina and Maryland did to entrench their parties in political office whatever the electorate might think. And to elaborate on the constitutional injury those politicians wreaked, to our democratic system and to individuals’ rights.

The plaintiffs here challenge two congressional districting plans – one adopted by Republicans in North Carolina and the other by Democrats in Maryland – as unconstitutional partisan gerrymanders. As I relate what happened in those two States, ask yourself: is this how American democracy is supposed to work?

After the 2010 census, the North Carolina General Assembly, with Republican majorities in both its House and its Senate, enacted a new congressional districting plan. That plan governed the two next national elections. In 2012, Republican candidates won 9 of the State’s 13 seats in the U. S. House of Representatives, although they received only 49% of the statewide vote. In 2014, Republican candidates increased their total to 10 of the 13 seats, this time based on 55% of the vote.

Soon afterward, a District Court struck down two districts in the plan as unconstitutional racial gerrymanders. The General Assembly, with both chambers still controlled by Republicans, went back to the drawing board to craft the needed remedial state map. In 2016, Republican congressional candidates won 10 of North Carolina’s 13 seats, with 53% of the statewide vote. Two years later, Republican candidates won 9 of 12 seats though they received only 50% of the vote. (The 13th seat has not yet been filled because fraud tainted the initial election.)

Events in Maryland make for a similarly grisly tale. For 50 years, Maryland’s 8-person congressional delegation typically consisted of 2 or 3 Republicans and 5 or 6 Democrats. But in the 2010 districting cycle, the State’s Democratic leaders, who controlled the governorship and both houses of the General Assembly, decided to press their advantage.

At its most extreme – as in North Carolina and Maryland – the practice amounts to 'rigging elections'

Maryland’s Democrats proved no less successful than North Carolina’s Republicans in devising a voter-proof map. In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. Yet in each of those elections, Democrats have won seven of eihgt House seats.

Now back to the question I asked before: is that how American democracy is supposed to work?

I have yet to meet the person who thinks so. “Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.” The Constitution begins: “We the People of the United States.” The Gettysburg Address (almost) ends: “government of the people, by the people, for the people.”

If there is a single idea that made our nation (and that our nation commended to the world), it is this one: the people are sovereign. The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people.”

Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them.

Election day – next year, and two years later, and two years after that – is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.

And partisan gerrymandering can make it meaningless.

At its most extreme – as in North Carolina and Maryland – the practice amounts to “rigging elections.” 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.

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.”

‘The practices imperil the system of our government’

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.”

For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

Gerrymandering helps create the polarized political system so many Americans loathe. And gerrymandering is, as so many justices have emphasized before, anti-democratic in the most profound sense. In our government, “all political power flows from the people.” And that means, as Alexander Hamilton once said, “that the people should choose whom they please to govern them.”

But in Maryland and North Carolina they cannot do so. In Maryland, election in and election out, there are seven Democrats and one Republican in the congressional delegation. In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats.

Is it conceivable that someday voters will be able to break out of that prefabricated box? Sure. But everything possible has been done to make that hard. To create a world in which power does not flow from the people because they do not choose their governors.

Of all times to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.

With respect but deep sadness, I dissent.