Gerrymandering Is An Issue For Elected Officials, Not The Supreme Court

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John Ryder Co-Chair, Republican National Lawyers Association
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On Tuesday, the Supreme Court of the United States opened its term with a bang: oral arguments in Gill v. Whitford, the Wisconsin political gerrymandering case.  The case was brought by disgruntled Democrats asserting that the redistricting plan adopted by the Republican-controlled legislature was an unconstitutional political gerrymander.

The Supreme Court, after first opening the door to such claims in Davis v. Bandemer in 1986, has closed the door in recent years, leaving it only ajar by dint of Justice Anthony Kennedy’s equivocation on the issue.  Four Justices appear to believe such claims to be beyond the reach of the courts and four believe that the courts must use their power to reign in partisan gerrymanders.  Justice Kennedy, in the prior cases, indicated that the courts may step in only if there is a judicially manageable standard.

The Plaintiffs in Whitford attempted to present such a standard.  First, they argued for what they called the “efficiency gap” as a measure of political gerrymandering.  Then, they argued for a different measurement: “political asymmetry. “The shifting nature of the Plaintiffs’ case suggests strongly that they cannot satisfy Justice Kennedy’s quest for a judicially manageable standard.

Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court.

The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution.

Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.”  Both Gorsuch and Roberts noted that jurisdiction in redistricting cases is mandatory, not discretionary, with the Supreme Court. That means that potentially all 99 state legislative bodies in the U.S. could be challenged in federal district courts with a direct right of appeal to the Supreme Court of the United States.

Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections.

In the last election cycle, highly trained election analysts and data crunchers of various sorts could not figure this out.  While most judges I know are very smart people, I doubt that their political acumen and powers of prognostication exceed those of the professional political punditry.  Remember, the expert pollsters said Hillary was a lock to be elected President in 2016.

In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.

This is a bridge too far.  It is beyond the ability of the courts to accomplish and it should be beyond their duty.  What the Plaintiffs in Whitford are requesting is an impossible task more of the type performed by political bosses of a bygone era. The Supreme Court should not ask courts to make these political judgments.

Perspectives expressed in op-eds are not those of The Daily Caller.