Washington, D.C.- The Supreme Court heard a strong argument Tuesday for reining in partisan gerrymandering — at least if it’s extreme enough to allow one party’s politicians to keep themselves in power for a decade.
“Politicians are never going to fix gerrymandering. You are the only institution in the United States that can solve this problem,” Paul Smith, an attorney for Wisconsin Democrats, who brought the current case, told the justices. “And this is your last opportunity” to act before the next round of redistricting following the census of 2020.
In essence, the court is being asked to decide whether such a partisan divide should continue unabated or be reined in. The immediate stakes are enormous: A decisive ruling striking down the Wisconsin Assembly map could invalidate redistricting maps in up to 20 other states, said Barry C. Burden, the director of the Elections Research Center at the University of Wisconsin-Madison. Other analysts said that at least a dozen House districts would be open to court challenges if the court invalidated Wisconsin’s map. Some place the number of severely gerrymandered House districts as high as 20.
The case to be heard on Tuesday, Gill v. Whitford, could settle that debate once and for all. The 54 friend-of-the-court briefs, from party elders and officeholders, social scientists, historians, constitutional lawyers and even a neuroscientist, help build powerful arguments on both sides. They show how complex the seemingly simple definition of an unconstitutional gerrymander really is — and how the justices could define it should they choose to.
Gill v. Whitford is straightforward enough: After taking control of Wisconsin’s Legislature and State Capitol in 2010, Republicans used computer models and voting data to redraw political boundaries in the Assembly, the Legislature’s lower house. The map cemented the Republican majority in place. In the three elections since, Democrats have never won more than 39 of the 99 seats, even when they won a majority of the votes cast statewide for Assembly candidates.
Justice Anthony M. Kennedy, who likely holds the swing vote on the issue, seemed open to ruling that extreme gerrymanders are unconstitutional.
Kennedy asked a lawyer for Wisconsin’s Republicans whether it would be constitutional for the state to adopt a law that the election map will be drawn to “favor party X over party Y.”
Attorney Erin Murphy hesitated, noting that in this case, Republicans did not publicly proclaim that they were drawing a statewide map to ensure the GOP would maintain a solid majority, even though that was the effect of the district lines they created.
By the time the hourlong argument ended, it was clear that Kennedy believes that the Constitution would prevent one party from writing a law designed to keep itself in power for a decade. What was unclear is whether he was convinced that the Republicans in Wisconsin had in effect done that when they went behind closed doors and drew legislative boundaries.
The argument against that map can be traced to the most significant decision on political boundaries: the Supreme Court’s ruling, in 1964, that political districts must contain roughly equal numbers of people. (In the state at issue, Alabama, some State Senate districts contained as many as 41 times the number of voters of others.) Every vote must carry equal weight, the court stated; to dilute some voters’ voices by packing them into more populous districts violated the Equal Protection Clause of the Fourteenth Amendment.