Everything You Need To Know About The Supreme Court's Big Gerrymandering Case
Tuesday, The Supreme Court heard oral arguments in Gill v. Whitford, a case that could transform America's political landscape by ending the contentious practice of political gerrymandering. So what's the case really about and why is it so important? Here's what you need to know.
What Is Partisan Gerrymandering?
Political gerrymandering is the controversial practice of redrawing congressional district borders to favor a political party. The redrawing process is mandated by The Consitution to happen every 10 years, based on state population as determined by The Census, but political parties have begun to use the process as a way to tip the scales in their favor.
States have to assign each of their House seats to a congressional district. This requires drawing a map that splits a state up into a number of geographic regions… In most states, this process is done by the state legislature with the approval of the governor. So you see where the potential for shenanigans starts to creep in: If the statehouse and governor's mansion are controlled by the same political party, there's not much to stop them from drawing congressional districts in a way that maximizes that party's representation in the US Congress.
Republicans Have Used Gerrymandering To Successfully Expand Their Power Nationally
Republicans have successfully used gerrymandering to expand their reach in in state legislatures across the country.
In the last two decades, the GOP has greatly increased and entrenched its dominance in the state legislatures and Congress through the use of partisan redistricting. The GOP now has control of state legislatures in 32 states, covering 61 percent of the population, while Democrats control just 13 state legislatures, covering 28 percent of the population.
[NPR]
The Supreme Court Refused To Block Gerrymandering Outright In 2004, But Left The Issue Open
In 2004, The Supreme Court ruled in Vieth v. Jubelirer, that political gerrymandering was unlawful, but they could not get involved because the issue was of an explicitly political nature. Justice Kennedy, in his crucial fifth vote, left the possibility of ruling political gerrymandering unconstitutional open:
[I]n a pivotal 2004 case, he went along with the court's 5-3 ruling rejecting a challenge to a Congressional redistricting plan in Pennsylvania alleged to unfairly favor Republicans.
While Justice Antonin Scalia deemed the courts' search for partisanship in redistricting a fool's errand akin to the search for gambling in "Casablanca," Kennedy parted with the other justices in the majority at that time by leaving open the possibility that some overly partisan plan could be invalidated in the future if a litigant came up with manageable way to identify and fix such a violation.
[POLITICO]
Gill v. Whitford Challenges Gerrymandering In Wisconsin
Gill v. Whitford, the case now in front of the court, challenges gerrymandering in Wisconsin. In 2010, Republicans took new control of 20 state legislatures, including Wisconsin's. Republicans used the opportunity to gerrymander the state.
They hired redistricting consultants and used sophisticated software to draw a variety of maps that packed some Democratic voters into deep blue districts and separated other groups of Democrats into districts where they wouldn't hurt Republican candidates. They then tested those maps under a variety of conditions, as their redistricting consultant explained: "What if the Democrats have a good year? What if the Republicans have a good year? How does it shift?" One presentation to the Republican caucus in the Wisconsin State Senate made the intent of the process absolutely clear: "The maps we pass will determine who's here 10 years from now."
[Slate]
In 2012 and 2014, Republicans in Wisconsin only won 48.6% and 52% of the vote respectively but won 60% and 63% of the available seats.
A District Court Ruling In 2015 Followed Justice Kennedy's Requirements For Striking A Case Of Gerrymandering
In 2015, Democrats challenged the gerrymandering in Gill v. Whitford, and a federal judge ruled gerrymandering to be unconstitutional for the first time. The decision followed the path Justice Kennedy paved in his Vieth decision, using a First Amendment basis.
It also outlined a way that courts could determine whether or not gerrymandering was too political. The test hinges on the concepts of "waste" and "entrenchment," designed by two academics. Vox explains:
[G]errymandering forces the losing party to "waste" votes by placing all its voters into a small number of districts where the party gets a landslide, rather than spreading out those voters so they can have more impact… fair districting requires a roughly equal number of wasted votes for each party, and that districting schemes where one party is wasting many more votes are unconstitutional. They call their metric the "efficiency gap," calculated by taking the difference between the number of "wasted votes" for each party, and dividing that difference by the total number of votes.
[Vox]
In Gill v. Whitford, the plaintiffs argue that a gap over 7% "entrenches" a majority party for the next 10 years, preventing political change from occurring despite a shift in voter attitude.
It Will Come Down To Kennedy Again
Like in many cases in recent memory, Whitford will almost certainly be determined by Justice Kennedy's vote (Kennedy was appointed by Ronald Reagan, but has been known to cast liberal and conservative votes).
In oral arguments, conservative justices like John Roberts suggested siding with the plaintiffs would open up a Pandora's box of gerrymandering challenges: "We'll have to decide in every case whether the Democrats win or the Republicans win."
Liberal Judge Ruth Bader Ginsburg asked "what becomes of the previous right to vote" when districts are predetermined for us?
Justice Kennedy gave mixed signals:
Kennedy (whom many regard as the key vote in the case) acknowledged that the plaintiffs could not point to a specific Supreme Court case in their favor, but he asked Wisconsin Solicitor General Misha Tseytlin whether the plaintiffs might have standing if their claims were grounded in the First Amendment, rather than a right to equal protection of the laws. Kennedy seemed to suggest that they would, telling Tseytlin that such plaintiffs would have a First Amendment interest in having their preferred political party be strong, rather than weak… Perhaps notably, Kennedy did not ask Smith any questions at all during Smith's 30 minutes at the lectern – which, although there's no way to know, would seem to bode well for the challengers.
