The Supreme Court decided Monday to take up a landmark challenge to partisan gerrymanders, raising the prospects of a significant rearrangement of legislative political power at the state and federal level.
“Gerrymandering” refers to the practice of drawing legislative district lines to favor incumbents, political parties or interest groups. Although the justices have frequently invalidated district maps that disadvantage minorities, they have stopped short of striking down maps favoring one political party over the other.
A ruling that partisan gerrymanders are unlawful would dramatically recast the apportionment process and shuffle the balance of power in Congress and state legislatures.
“This case represents the last best chance for a Court to rein in excesses of partisan gerrymandering, while Justice Kennedy, who has been the swing vote on this issue, remains on the Court,” UC Irvine School of Law Professor Rick Hasen wrote on his Election Law Blog.
The case, Gill v. Whitford, arises from Wisconsin. Although Republicans and Democrats split the vote in the 2016 general election, the GOP has a 2-1 advantage in the state legislature.
A three-judge panel ruled in 2011 that the Republican redistricting plan violated the First Amendment and equal rights protections given its partisan posture.
This case could be heard as early as October. The justices did give themselves something of a procedural off-ramp to avoid reaching a decision on the merits of the case. The Court indicated it would also consider a jurisdictional issue when the case is heard, creating the possibility it will ultimately punt because they lack authority to resolve the controversy.
If current political trends continue, Republicans will control the redistricting process in a significant majority of states. Though statisticians debate the extent to which the GOP has benefitted from gerrymanders, the party still stands to lose a great deal of power should the Court significantly curtail a state legislature’s discretion in drawing district lines favoring the majority party (which courts have generally allowed in the past).
The Court last considered this question in 2004 in Vieth v. Jubelirer, a challenge to Pennsylvania’s district maps brought by Democratic interest groups. The case resulted in a split decision without a majority opinion. Justice Antonin Scalia wrote an opinion joined by Chief Justice William Rehnquist, and Justices Sandra Day O’Connor and Clarence Thomas concluding the Court should never review partisan gerrymandering claims, while Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer took the opposite view. Justice Anthony Kennedy wrote a concurrence siding with the Court’s conservative wing in deciding the justices should not intervene in the Pennsylvania case. However, he also said the Court should police partisan gerrymanders if the proper test is formulated.
Nicholas Stephanopoulos of the University of Chicago Law School and Eric McGhee of the Public Policy Institute of California believe they have devised such a test. They purport to show they can quantify the degree of partisan gerrymandering by identifying the “efficiency gap.” The gap is assessed by determining the difference between the two-parties wasted votes, divided by the total number of ballots cast. Wasted votes are defined as votes that don’t help a candidate achieve victory.
The Court’s renewed interest in the issue comes as Democrats gear up for the redistricting fight after the 2020 census.
Former President Barack Obama admitted to neglecting redistricting during the 2010 election. Since leaving the White House, he has begun working closely with former Attorney General Eric Holder to prepare Democrats for the redrawing of boundaries in legislative and congressional districts after 2020.
“We were determined to do things not political,” Holder said of his party’s poor fortunes in the last apportionment fight.
“[But] this was the political thing that we talked about the most,” he added.
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