WI case asks US Supreme Court to rule on gerrymandering

May 3, 2017

By Melissa Behling

NNAF News Fellow | University of Wisconsin-Madison

The U.S. Supreme Court will soon be faced with the decision to chart new ground on political gerrymandering or to leave it alone, as it has in the past.

Wisconsin redistricting case Whitford v. Gill could mark the first Supreme Court ruling on political gerrymandering. As of now, the Court has only ruled on racial gerrymandering.

The Supreme Court is required to hear Whitford v. Gill, just like other redistricting cases. But historically, justices have been unable to determine if political gerrymandering is unconstitutional and have no precedent or measure for determining when it is at play.

Previously, justices have argued redistricting should be left to Congress. But most recently in Vieth v. Jubelirer, Justice Anthony Kennedy suggested he would be open to a constitutional challenge to political gerrymandering if someone could make a workable standard to identify it.

Whitford v. Gill offers a measure. Plaintiffs created a simple mathematical formula called the “efficiency gap” to determine how many votes were “wasted” in each district. The measure identifies if one party has been intentionally packed into certain districts so it wins by an overwhelming majority, when it could have won more districts by a smaller majority, thus resulting in more Assembly seats, if voters of that party were more spread throughout the state.

“Gerrymandering simply causes some votes to count more than others—not formally, but in practice,” said political science and legal studies professor Howard Schweber of the University of Wisconsin–Madison. Although voters can expect a certain degree of discrepancy between the statewide majority and the outcome district by district, “gerrymandering takes a natural feature of the system and turns it into a game and a manipulation.”

“What used to be a matter of drawing lines on a map with a pencil is now a science, and it’s extraordinarily effective,” Schweber added.

The 2016 Wisconsin case presents extensive evidence of the Republican-majority legislature’s “systemat[ic] dilut[ion] of the voting strength of Democratic voters statewide,” through a redistricting plan that “intended to burden the representational rights of Democratic voters” by “impeding their ability to translate their votes into legislative seats.”

On these grounds, a federal panel of three judges found Wisconsin’s 2011 state Assembly maps to be unconstitutional. The 2-1 ruling stated the maps violated the Equal Protection Clause of the Fourteenth Amendment (“one person, one vote”) and the First Amendment (freedom of association).

In February, Wisconsin Attorney General Brad Schimel, appealed the federal panel’s ruling to redraw the districts, sending the case directly to the high court.

“This could be a landmark decision,” said Professor David Canon, chair of the University of Wisconsin–Madison’s Department of Political Science.

“I think they should take a position at some point to say this is a problem,” Canon said. “We’ve seen too many states now where they’ve gone to pretty extreme lengths to really hurt the minority party.”

 

Constitutionality

Article II, Section I of the Constitution requires legislatures to re-draw district lines every 10 years as new census data is published. But there has long been debate about whether the Constitution specifies how the lines can be drawn.

Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program, said this is a question that bothers the Court as well as many Americans. “I think people recognize that there is a lot of gamesmanship that goes on when it comes to drawing district lines in order to favor political parties or incumbents,” he said.

According to a 2014 Gallup poll, 9 percent of Americans think the solution to “fixing Congress” is to “make members accountable to people, not their own agendas.” Gallup defines this category to include reforms like ending gerrymandering, limiting recesses and requiring balanced budgets.

 

Politicizing the Supreme Court

Justices appointed by both Democratic and Republican presidents have expressed concern about political gerrymandering, and it has negatively affected both parties in various states.

As an independent, nonpartisan branch, the Supreme Court is positioned to rule on political gerrymandering and help make Congress more accountable. The Court’s image, however, may be slightly tainted.

“The whole idea of the blind justice holding the scales … or the idealistic image of how they are just neutrally applying the constitutional law—it’s almost never been that,” said Canon.

Canon added that the Court has “always been a political body [given] the justices appointed by the Democratic president are going to be different than the justices appointed by the Republican president.”

Recently, the Court seems to have become a more politicized place, at least in terms of confirmation hearings. After Senate Democrats filibustered and blocked President Trump’s nominee, Neil Gorsuch, Senate Republicans chose the so-called “nuclear option” and confirmed Gorsuch with a simple majority vote. This dramatic end to the yearlong tension after Republicans blocked President Obama’s nominee, Merrick Garland, has made the nomination process “the most politicized it’s been at any time in our history,” said Schweber.

But this doesn’t mean the Court itself is more political.

Li said the justices are more prone to philosophical bias, which is “how much the courts should police and interfere with politics generally,” rather than political bias, like intentionally favoring one political party over another.

“[The justices] should be keenly aware [gerrymandering] is something that isn’t about one party or another,” Li said.

 

Unwillingness to rule

on Standing question

The plaintiffs have asked the Wisconsin legislature to enact a new map by Nov. 1, 2017, leaving enough time to prepare for the November 2018 Assembly election.

Schweber said when the case is taken up, the Court will be addressing two standing issues: political gerrymandering and another topic listed in the footnotes of a 1938 case.

Footnote four of United States v. Carolene Products has been called the “most famous footnote in Constitutional law.” It outlines scenarios in which it’s possible the Court should be less deferential to Congress but makes no ruling on them. One situation listed is where the law affects the Democratic process itself.

“So here we are coming up on 2018, finally addressing the question,” said Schweber. “Will the court step up and say we don’t trust the legislatures to regulate the process by which they themselves gain and keep power?”

mnbehling@wisc.edu

 

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