The origin of the term “ gerrymander ” originated when Massachusetts Gov. Elbridge Gerry signed a redistricting bill into law in 1812. Persons thought one oddly shaped district in the Boston area looked like a salamander. The term gerrymander now refers to all forms of unusual configurations of voting districts for legislative office done to maximize a party’s partisan electoral advantage.

People always have objected to gerrymandering, either as a general principle, in particularly egregious examples, or just in instances that undermine your side’s political power. We also have a judicial battle going on regarding this matter. Can a gerrymander violate constitutions, whether the national or state ones? The Supreme Court has said it depends in part on the gerrymander’s basis.

This summer, the court continued to say that some maps can be unconstitutional in reference to how they treat districts’ racial composition. But in 2019, the Supreme Court said it could not and would not assess “partisan gerrymanders,” where a redistricting plan maximizes the congressional seats one party can win.

Lawsuits claiming partisan gerrymandering now have moved to state courts. Rather than arguing the U.S. Constitution bans such maps, litigants now look to state constitutions. States across the country, including Wisconsin, Ohio, and Kentucky, have recently taken up cases on this issue. North Carolina recently reversed itself to read its constitution in line with Supreme Court precedent.

The latest example has arisen in Utah , where the state’s new congressional map gives the GOP the advantage in all four of its allotted House districts. One need not think hard or long to see the implications this and similar maps hold politically. The GOP holds a razor-thin majority in the House and the movement of only a couple seats might make the difference between maintaining it or giving the Democrats control of the chamber.

But we must not reduce the debate over gerrymandering to whether it aids or hinders one’s own partisan preferences. We also cannot simply ask the question of whether some or all partisan gerrymanders are just or good. The real question Utah and other states must ask themselves is whether judicial power can and should settle these debates.

They should answer as the Supreme Court did, and as have states such as North Carolina. Judges do not have the tools needed to make such determinations.

First, judges do not have a basis to act in the text of various constitutions. Utah’s constitution, like most state constitutions and our national one, do not explicitly ban at least some level of partisan advantage in districting plans. In addition, declarations in those documents that elections be free and fair do not require a congressional delegation to reflect the partisan identification of voters. For judges to read that requirement in looks more like lawmaking than judicial power.

Second, judges are sorely ill-equipped to provide a workable standard for determining supposedly illegitimate partisan gerrymanders. Judges decided legal disputes according to preset, clear standards set out by law. We have no such standard given by law on redistricting as far as partisan composition is concerned.

So, let us assume constitutions did implicitly forbid such gerrymanders. Even then, judges still would have to come up with a clear, objective standard to determine when such gerrymanders occurred. Judges don’t have the proper tools so to do. Drawing districts includes such a diverse array of criteria, specific to time and place, that making hard, clear judicial formulas is nearly impossible. One cannot predict how independent voters, who comprise a large section of the electorate, will shift district voting patterns. Migration and geographical contiguity and other matters all make one clear line even more difficult.

Redistricting should be left to voters and their state representatives. Again, this does not mean partisan gerrymanders are always just or good. Often the extreme versions do damage to our representative government. But holding legislatures accountable for that failure of justice must reside with the people. They are the more fitting police for such injustice than judges. They are better equipped to assess such plans. And they are, after all, the ultimate human source of political power.

Adam Carrington is an assistant professor of politics at Hillsdale College.