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Supreme Court Targets Rigged System of Redistricting

In agreeing to hear the Wisconsin gerrymandering case, we can only hope the high court—um, that’s to say, Justice Kennedy—has decided it’s time to curtail this practice.

June 20, 2017

Cross-posted from The Daily Beast

The U.S. Supreme Court made big news Monday. As expec­ted, in the next term it will hear Whit­ford v. Gill, a case chal­len­ging partisan gerry­man­der­ing in Wiscon­sin. Law profess­ors and polit­ical oper­at­ives alike are in a tizzy. The Justices have a rare oppor­tun­ity to signi­fic­antly improve the way Amer­ican elec­tions work, by curb­ing the manip­u­la­tions that deprive voters of an effect­ive voice. It could have massive elect­oral consequences.

Gerry­man­der­ing is a hoary part of the Amer­ican polit­ical system. Politi­cians have glee­fully drawn elect­oral maps to bene­fit them­selves and their parties since polit­ical bosses wore powdered wigs.  The quirky phrase itself was coined to describe a district, signed into law by Massachu­setts Governor Elbridge Gerry in 1812, that looked like a sala­man­der.

But in recent years, the charm has worn off. In the past, creat­ive if mischiev­ous mapmak­ing was seen, in the proud words of one congress­man, as a form of “modern art.” Now Big Data, computers and unified party control of state­houses at key moments have led to gerry­manders far more potent than their precurs­ors. Politi­cians have learned to carve districts with ever-greater preci­sion. Because they swept the 2010 midterms, Repub­lic­ans have bene­fit­ted greatly from this.

recent study by the Bren­nan Center shows the impact of these “extreme maps.” In Pennsylvania, for example, Donald Trump narrowly won in 2016, and Demo­crats won many statewide races in 2014. But 13 out of 18 congres­sional seats are held by Repub­lic­ans. In narrowly divided North Caro­lina, with a Demo­cratic governor and closely fought elec­tions, Repub­lic­ans have a 10–3 advant­age in House seats. This kind of tilt is not found every­where. In fact, seven states account for the worst gerry­man­der­ing. All told, that gives 16 or 17 seats to Repub­lic­ans in Congress—a big chunk of the 24 seats Demo­crats would need to gain to win a major­ity.  

The U.S. Supreme Court has watched this phenomenon warily, wincing but fail­ing to act. The Justices don’t like gerry­man­der­ing. They have long been skep­tical of the grubby ways politi­cians entrench them­selves. But they felt, as Justice Anthony Kennedy wrote in the 2004 Veith case, that there were no “clear, manage­able, and polit­ic­ally neut­ral stand­ards” to guide their actions. How much gerry­man­der­ing is too much? Since then, however, maps became so extreme that a fresh set of legal chal­lenges seemed ripe for the bring­ing. An armada of lawsuits moved through the federal courts. The most signi­fic­ant was the case in Wiscon­sin. There, a federal three-judge panel found that the entire state’s map was too imbal­anced, “an uncon­sti­tu­tional polit­ical gerry­mander” drawn to bene­fit the Repub­lican Party. This was the first time in decades, if ever, that a federal court ruled this way.

Now, the Supreme Court will have its say. It’s a high-stakes legal battle. The good govern­ment chal­lenge to the Wiscon­sin maps will be defen­ded by Paul Smith, a legendary litig­ator who argued the land­mark gay rights case Lawrence v. Texas. As with all big consti­tu­tional cases, the Court will likely receive friend of the court briefs from across the spec­trum. These often matter greatly.

As with so much else at the high court, observ­ers believe the case may turn on the views of Justice Kennedy. How to read the tea leaves? Kennedy has made clear his distaste for gerry­man­der­ing. In 2014, he joined an opin­ion uphold­ing state redis­trict­ing reform that lust­ily denounced the prac­tice. Yet he recently signed on to a dissent in another gerry­man­der­ing case, which implied that at least some partisan gerry­manders might be consti­tu­tion­ally permit­ted.

The lawyers have much to chew on. On Monday the Court also issued a “stay” of the appeals court’s order to Wiscon­sin to begin draw­ing its maps. An omin­ous sign that five justices includ­ing Kennedy disagree with the appel­late court? Or merely a recog­ni­tion that this is a big issue where the high court will ulti­mately have the final say? Spec­u­la­tion can be madden­ing, and ulti­mately unpro­duct­ive. On this case, as on few others, the facts and consequences of the rulings will matter most. Some justices might insist that the Court can’t do anything here without a precise rule. Others will want to make sure that a ruling in one egre­gious situ­ation does not let loose a torrent of new cases for them to then decide.

This comes at a time of increas­ing public aware­ness of the broken polit­ical system, with rising demands for change. In Michigan, activ­ists are ready­ing a ballot initi­at­ive to create a nonpar­tisan commis­sion to draw district lines. Ohio Governor John Kasich already backed a success­ful effort to reform legis­lat­ive redis­trict­ing, and looks ready to support one for federal races as well. Cali­for­nia and Arizona already have commis­sions, created by voters through ballot meas­ures. In Flor­ida, a consti­tu­tional amend­ment prohib­ited partisan gerry­man­der­ing, giving judges the power to stop it—with some prom­ising results, too. Reform is in the air.

But for now, the august Supreme Court cham­ber will be the main stage. Histor­ic­ally the justices have shrunk from cases with major polit­ical implic­a­tions. But at times the Court speaks loudly ad power­fully when it comes to demo­cracy. In the 1960s, it thundered that our system depended on “one person, one vote,” mean­ing roughly equal legis­lat­ive districts. More recently, and much more destruct­ively, the justices shred­ded campaign finance law in Citizens United, and gravely weakened the Voting Rights Act in Shelby County v. Holder.

This case offers a rare chance for a vital consti­tu­tional advance when it comes to mean­ing­ful voting rights. Citizens know the system is broken. In the last midterm elec­tion, turnout scraped near the lowest level in 72 years.  Far too many places lack genu­ine compet­i­tion. A map of deep red and blue districts yields a polar­ized Congress. When polit­ical manip­u­la­tion goes too far, the Court has a chance to say: it’s too much. All eyes will be on the high court start­ing the first Monday in Octo­ber. Its ruling – presum­ably by June 2018 – will rattle ballot boxes around the coun­try.  

(Photo: Flickr/Phil­Roeder)