The unwillingness of courts to step into the thicket and police partisan gerrymandering abuses has long been a source of frustration to reformers, advocates, and voters. But a panel of three federal judges in Wisconsin in Whitford v. Nichol may have just set the stage for a big change this week with a unanimous ruling allowing partisan gerrymandering claims to proceed to trial. Trial in the case starts the week of May 23 and is expected to conclude in early June.
The April 7 ruling is the second big court victory for the Wisconsin voters challenging the constitutionality of a state house map drawn in 2011 by Wisconsin’s GOP controlled legislature. In December, the three-judge panel rejected arguments by the state that partisan gerrymandering was not an issue that courts had the power to decide (or in legal terms, was non-justiciable). The December ruling was the first time a partisan gerrymandering claim survived a motion to dismiss in more than three decades.
At issue in the case is the claim that after the wave elections in 2010, Republican lawmakers met “in secret” and drafted a plan “without any input from Democrats, and then enacted the plan… with little debate” with the goal of locking in the electoral advantage of Republicans. The challengers say the effort was so effective that “there is a nearly 100 percent chance that the plan will continue to disadvantage Democrats…throughout the life of the plan.”
At trial in May, the court will decide two major issues. The first is whether the Wisconsin state house plan had been drawn with discriminatory partisan intent. If the court concludes that it was, the court will take up the question of whether the plaintiffs’ succeeded in proving that constitutionally discriminatory effect exists — an issue that thus far has befuddled and deadlocked the Supreme Court.
Depending on the outcome of the trial, the case could make its way back to the Supreme Court, giving the Court a chance to consider the constitutionality of partisan gerrymandering for the first time in more than a decade. A Maryland case challenging a Democratic gerrymander of that state’s congressional map also could be headed to the high court. If either happens, it will be a very different high court that hears the case this time around.