Partisan Gerrymandering Heads to Court Test: Can It Go Too Far?
(Bloomberg) -- Republicans won less than half the vote for the Wisconsin state Assembly in 2012 -- but they still got more than 60 percent of the seats.
Democrats are blaming the voting map in a U.S. Supreme Court case that could change the rules for drawing election district lines around the country. The question is whether a redistricting map that’s skewed to help one political party is ever so extreme that it violates the Constitution.
It’s a fight that "many consider the most important case involving the structure of American politics in a generation," said Jeffrey Rosen, president of the National Constitution Center.
The case, set for argument Oct. 3, will be one of the first before the justices when they open what promises to be a historic term next week. The court will weigh religious objections to gay marriage, cell-phone privacy and employees’ right to file class-action lawsuits. The justices may add a showdown over public-sector union fees. President Donald Trump’s travel ban might return to the court after being dropped from the October argument calendar.
The term will be the first full one for Neil Gorsuch, the Trump-appointed justice who established himself last spring as a new anchor for the court’s conservative wing.
Although the Supreme Court has ruled against gerrymandered voting districts that disfavor members of a particular racial or ethnic group, it has never struck down a map as being so unfair to one political party that it violates the Constitution. In a 2004 case, Justice Anthony Kennedy wrote a pivotal opinion that left open the possibility but said opponents had to produce a test to separate acceptable gerrymanders from unconstitutional ones.
The Right Test?
Wisconsin Democrats say they now have the right test -- and the right map -- for the court to issue a groundbreaking decision and stem what they say is a growing threat to American democracy. Wisconsin is among the majority of states where the state legislature has the primary role in redistricting.
"Gerrymandering is getting much worse because of three things: better data, better computers and a more polarized electorate," said Paul Smith, a Washington lawyer at the Campaign Legal Center who will argue on behalf of the map’s challengers. "Those three things make it much more feasible to build bias into the map and know it’s going to last."
Republicans created the map after winning full control of the state government in 2011, the first time either party had done that in Wisconsin in more than 40 years. Republican leaders took the unusual step of hiring a law firm that set up a restricted-access "map room," consulted with a statistician to assess likely electoral outcomes and drew the map in a secretive, four-month process. The legislature then took just nine days to approve the law that lays out the Senate and Assembly maps.
The Republicans’ statistician concluded that under that map, Democrats would need 54 percent of the statewide vote to win a majority of the Assembly.
Wisconsin Republicans make no apologies for drawing the map for partisan advantage, something they say lawmakers have done since the country’s founding. The word "gerrymander" was coined to describe an 1812 Massachusetts redistricting plan that was approved by Governor Elbridge Gerry and included a district some thought resembled a salamander.
"It is plainly a partisan process," Wisconsin Attorney General Brad Schimel, a Republican, said in an interview at his office in the state capitol. "Whoever’s in charge at the time of the census gets to draw the maps."
In some states, it’s Democrats who have done the gerrymandering. In a separate case, Republicans are asking the Supreme Court to throw out a western Maryland congressional district designed by Democrats to push out a Republican representative. The Supreme Court will probably hold that case until it rules on the Wisconsin map.
The key question for the court -- and Kennedy -- is how to determine whether partisanship has gone too far. Although the Wisconsin map lacks the serpentine-like districts that have marked some racial gerrymandering cases, the state’s Democrats say those aren’t necessary to prove a map is unlawful.
Instead, they are pointing the court toward a statistical measure known as the "efficiency gap." It focuses on how frequently votes in a particular district are effectively wasted, either because they go to a candidate who loses or because they provide the winner with more support than was needed.
Democrats say those measures show the Wisconsin map-drawers achieved their goal. In court papers, the Democrats said the map "packed" some Democratic voters into overwhelmingly liberal districts and "cracked" many of the rest by dispersing them among districts where they were likely to fall just short of winning.
"Under this apportionment, Democrats were never going to get a majority in the state Assembly," William Whitford, a University of Wisconsin law professor and the lead plaintiff in the case, said from his home in Madison.
Republicans say much of their advantage stems from the disproportionate number of Democratic voters who live in the two largest cities, Milwaukee and Madison. Republicans say that type of self-sorting makes it virtually impossible to draw a map without creating some heavily Democratic urban districts.
"It is a political fact that Democratic voters tend to be relatively concentrated in urban areas and Republican voters are relatively dispersed in rural areas," said Paul Clement, a Washington lawyer at Kirkland & Ellis who is arguing for the Republican-led state legislature.
Democrats say political geography can explain only so much. Another plaintiff, Helen Harris, lives on the outer northwest edge of Milwaukee. Until the redistricting, she and her husband, Curtiss, had been represented by a Democratic assemblyman who lived a few blocks away.
The new map reduced the number of Democratic districts in Milwaukee by one and put Harris’s pocket of the city into a sprawling Republican-heavy district that extends out 25 miles through suburbs and farmland. Harris says her current representative, a Republican, is far less responsive to the needs of Milwaukee itself.
"It’s just not fair for one group to artificially manipulate these boundaries so that they have such a gross advantage," Harris said.
In siding with the Democrats on a 2-1 vote, a lower court concluded that the political geography played only a modest role in giving the map its pro-Republican tilt. The majority said the map was so partisan it violated the Constitution’s free-speech and equal protection clauses.
Ultimately, the Supreme Court case may turn on whether the challengers can convince Kennedy that a manageable standard exists to outlaw extreme gerrymanders without calling into question more modest uses of political power.
Some legal experts question whether Kennedy is ready to give federal judges license to determine how much politics in redistricting is too much.
"The court is going to be quite concerned, I think, about the prospect of unleashing district courts around the country to apply whatever standard it comes up with," said Kannon Shanmugam, a Washington appellate lawyer at Williams & Connolly. "There will be a concern that embroiling the courts in these quintessentially political disputes is going to be problematic."