Case That Could Curtail Gerrymandering Reaches Supreme Court

The Supreme Court at dusk. (Unmodified Creative Commons Photo by Joe Ravi.

Since the Supreme Court decided in 1962 that legislative apportionment was a justiciable issue, advocates for electoral reform have come to see the courts as a vehicle for change. Professor William Whitford continues this tradition as the lead plaintiff in Gill v. Whitford, a case that could establish a national, mathematical standard for what constitutes a fair electoral district.

The case is centered on Wisconsin’s legislative districts. Since Republicans redrew the districts for the Wisconsin Legislature following the 2010 census, Democrats haven’t won more than 39 of 99 seats in the past three elections. This is despite even receiving a majority of all votes cast in 2012.

Wisconsin’s districts are an example of gerrymandering, the purposeful manipulation of electoral districts to enhance one party’s control of the legislature. Gerrymandering is done by “cracking” and “packing.”

Cracking dilutes a party’s supporters across several districts to such an extent that they can’t achieve a majority (small, third parties are ignored) in any of them. Packing, the opposite of cracking, creates a few districts where the party wins by a landslide, effectively wasting votes that could’ve been used to succeed in other districts.

The notion that gerrymandering occurred is a fact of the case: a political science professor brought in to help Republicans draft the districts in question stated that “Republicans would maintain a majority under any likely voting scenario.” The question before the Supreme Court is whether gerrymandering can be so extreme as to be unconstitutional.

Whitford argues that Wisconsin’s method of redistricting deprived citizens of their constitutional right to vote with value, a principle established in Reynold v. Sims known as “one person one vote.”

Through extensive packing and cracking, Whitford says, Wisconsin devalued—in terms their influence on the partisan composition of the state legislature—the individual votes of Democrats in relation to those of Republicans.

Beverly Gill, arguing of behalf of the Wisconsin Electoral Commission, pointed out that the plaintiffs don’t have standing to sue as they are represented by Democrats and thus unaffected by the partisan gerrymandering.

Standing is the concept that a plaintiff must demonstrate to the court a significant connection to and harm from the law being challenged.

Gill also argued that the district court, which ruled in favor of Whitford, erred in that it did not apply the standard found in the 2004 Pennsylvania gerrymandering case Veith v. Jubilerer. In that case, the Supreme Court ruled that “gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.”

Whitford’s answer to Gill’s Veith defense lies in Associate Justice Kennedy’s concurrence in Veith, where Kennedy wrote that the most extreme partisan gerrymanders may constitute a violation of the First Amendment.

Essentially, Kennedy argued, by drawing districts to diminish the power of Democratic voters, Republicans were punishing those voters for associating with the Democratic Party. Kennedy explained that he would consider striking down a partisan gerrymander so long as the plaintiff provided manageable and consistent gerrymandering evaluation standards.

Whitford argues that the “efficiency gap” constitutes such a standard.

The efficiency gap measures which party has more “wasted votes,” either “lost votes” cast for a defeated candidate or “surplus votes” cast for a winning candidate beyond the majority needed (ignoring small, third parties) to win. When one party has significantly more wasted votes than the other, the electoral districts are gerrymandered.

The conservative justices are naturally skeptical of any standard. While all mathematical standards for measuring gerrymandering have pros and cons, none can be clearly derived from the language of the Constitution. Justice Gorsuch, a Trump appointee, went so far as to ask, “Where exactly do we get authority to revise state legislative lines?”

Gorsuch’s stance is quite conservative, as even Justice Clarence Thomas has stated that courts must invalidate district maps that violate the Constitution.

As with most controversial cases, the deciding vote in Gill will almost certainly be Kennedy.

While he has shown himself to rule in favor of states’ rights in the past, he is also a strong defender of the First Amendment. Until next June when the court issues its decision, only Kennedy knows how he leans on Gill.

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