In their instant analysis of the United States Supreme Court decisions on political or partisan gerrymandering in Rucho v. Common Cause and Lamone v. Benisek, many in the national media reported that there is now no further role for the “courts.” Despite later clarification that the states retain several roles, the impression is often left that a loss in the United States Supreme Court ends things as a matter of “constitutional law.”

We in New Jersey know that is not the case. The Supreme Court has, for now, ended the role of federal courts. In effect, this decision now leaves the matter of partisan gerrymandering to the states—their constitutions, legislatures and courts.

Our state, like a number of others, has used its constitution to establish independent redistricting commissions (noted by Chief Justice Roberts) that take redistricting decisions on Congress and the state legislature away from the self-interested legislature. Such commissions surely do involve partisan politics but not as pervasively as in legislatures. State Supreme Court jurisdiction to review commission decisions acts as a further safeguard.

Several years ago, such commissions were upheld, 5-4, by the Supreme Court in an Arizona case based on the federal constitution's mandate that “state legislatures” do redistricting, at least for federal elections (we editorialized on this case, in the New Jersey context). Disturbingly, Chief Justice Roberts dissented in the Arizona case on the ground that state legislatures had exclusive power to redistrict. Who knows how the Arizona precedent will fare in this Supreme Court?

In 2018, the Pennsylvania Supreme Court struck down a partisan congressional election map based on its state constitutional “free and equal elections” clause, dating from 1776. The federal constitution contains no similar provision, but more than a dozen states constitutions do. When the Pennsylvania Legislature failed to enact a new map, the court retained its own expert and adopted its own map. The 2018 midterm elections went forward with a much fairer map. The United States Supreme Court declined to review the state-law-based decision.

Finally, right-minded state legislatures could decide simply not to engage in hyper-partisan gerrymandering. Far-fetched as that may seem to today, most of us still believe that we voters should choose our representatives rather than the other way around. Maybe we could impress that view on our representatives.

All of the sophisticated statistical evidence, proposed constitutional tests, and advocacy developed in the federal litigation is not lost. Much of it was used to convince the Pennsylvania court in its state constitutional law case. Further, one of the factors convincing state courts to, in Justice Brennan's words, “step into the breach” in federal constitutional law is when the Supreme Court takes a “hands off” attitude toward a constitutional issue.

Now, it must be conceded that, in Dean Erwin Chemerinsky's words, state-level decisions are a “second-best alternative” to a nationally enforceable federal constitutional law decision. Yes, these apply in only one state at a time. Yes, state judges in most states face some kind of election or even impeachment (the Pennsylvania Legislature toyed with impeaching the justices who rejected their gerrymandered map). Yes, state constitutional decisions can be “overturned” by amendments to the constitution itself. All of that is true.

But now we know the national remedy is not to be anytime soon. Congress arguably could act but is unlikely to do so. We in New Jersey must continue our commitment to fair districts. Our Legislature wisely backed off a seemingly unfair proposal recently. Those in other states should get going to utilize their state law avenues to remedy this pernicious practice that is being used in increasingly sophisticated ways to increase political polarization by pushing meaningful electoral choice into primaries where extremism is encouraged.

In our federal system, many important matters are left to the states. That list now includes political gerrymandering.