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Will SCOTUS end partisan gerrymandering of congressional districts

Written By | Jun 23, 2017

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WASHINGTON, June 23, 2017 — The Supreme Court is being asked to uphold a lower court’s finding that Wisconsin’s redistricting effort was unconstitutional. The state’s  attorney general told the U.S. Supreme Court in a March 24 legal filing that a ruling striking down GOP-drawn legislative boundaries in the state is “unprecedented.”

In recent years, the Supreme Court has regularly tossed out state electoral maps because they have been “gerrymandered” to reduce the influence of racial minorities by depressing the impact of their votes. A ruling in 2015 held that Alabama had violated the 14th Amendment’s equal protection guarantee by packing too many black voters into a few electoral districts, diluting their influence in neighboring areas.

In May, in Cooper v. Harris, the court reprimanded North Carolina for doing the same in two legislative districts. But in the past the justices have looked the other way when districts were drawn with party advantage rather than race in mind. Partisan gerrymandering may be “unsavory,” as Justice Samuel Alito puts it, but it has not yet been held unconstitutional.

Last November, a divided panel of three Wisconson judges decided that it is unconstitutional. It became the first federal court in three decades to find that a redistricting plan violated the Constitution’s equal rights protections because of partisan gerrymandering. The case comes at a time when many are blaming the drawing of safely partisan districts for a polarized and gridlocked Congress.

Dale Schultz, former Wisconsin Republican Senate majority leader and Tim Cullen, a former Democratic majority leader are co-chairs of the Fair Elections Project, which helped organize the Gill v. Whitford litigation. They urge for an end to the way the state handles redistricting:

“If there’s one word that defines the last year or year and a half in this country it’s ‘rigged.’ People have come to realize that their votes aren’t as important as they once were. And that’s really what this case is about: It’s about making sure people’s votes have equal value.”

Tim Cullen added that he constantly hears from audiences that if his party had been in charge of the process, it would have done the same thing Republicans did.

“And, of course, the answer is Democrats probably would have done the same thing Republicans did. But that doesn’t make it right.”

Right now, a challenge to the way Maryland Democrats drew districts to squeeze out one of the state’s two Republican congressmen is making its way through the courts. The Supreme Court last considered this subject in 2004 in Vieth v. Jubelirer. The court five different ways and the justices could not agree on a test to determine when normal political instincts such as protecting your own turn into an unconstitutional dilution of someone else’s vote.

Justice Anthony Kennedy said he could envision a successful challenge “where a state enacts a law that has the purpose and effect of subjecting a group of voters of their party to disfavored  treatment.” What was elusive, he said, was “a manageable standard by which to measure the effect of the apportionment and so to conclude that the state did impose a burden or restriction on the rights of a party’s voters.”

One objective test has been set forth by University of Chicago law professor Nicholas O. Stephanopoulos and Eric McGhee of the Public Policy Institute of California. They call their theory the “efficiency gap.”

Under their approach, every voter packed into a district above the threshold electing a candidate from his party created a “surplus” vote. And someone in a district who votes for a candidate that is unable to win is a “lost” vote.

The efficiency gap measures the difference between the wasted votes of the two parties in an election divided by the total number of votes cast. In an ideal situation, where individual votes have as much impact as possible, the efficiency gap would be zero. The gap in Wisconsin was 13.3 in 2012. Some believe this is the kind of objective test Justice Kennedy said he was looking for.

After the 2020 census, new electoral maps will be drawn. If the challenge to partisan line-drawing succeeds, it could tighten the link between voter preferences and who gets elected.

After an electoral surge in 2010, Republicans used their newfound control of state legislatures and governor’s mansions to redraw district boundaries. In races for the House of Representatives in 2012, well over 1 million more voters opted for Democrats, but Republicans wound up with a 234-201 majority. The phenomenon was even more pronounced in state elections. In Wisconsin, 51 percent of voters picked Democrats in the 2012 state legislative contests, but Republicans took 60 percent of the 99 Assembly seats.

Another solution to this dilemma is taking partisan politics out of redistricting entirely. California has handed the role of drawing district lines to the independent and politically balanced California Citizens Redistricting Commission; Arizona has a similar commission. Florida has amended its constitution to forbid partisanship in drawing new districts. Iowa has turned the job over to a non-partisan state agency. In Oregon and Ohio, voters have approved a new Commission for redistricting state seats, but not those of the House, in 2021.

Professor Sam Wang of Princeton calls for non-partisan redistricting commissions in all 50 states.

“The great gerrymander of 2012 came 200 years after the first use of this curious word, which comes from the salamander-shaped districts signed into law by Governor Elbridge Gerry of Massachusetts. Gov. Gerry’s party engineered its electoral coup using paper maps and ink. But the advent of inexpensive computing and free software has placed the tools for fighting politicians who draw absurd districts into the hands of citizens.  It’s up to us to take control of the process, slay the gerrymander and put people back in charge of what is, after all, our House.”

Although the Supreme Court held decades ago that the purpose of redistricting was to ensure “fair and effective representation for all citizens,” legislators all too often use the process to lock the minority out of power. Both Democrats and Republicans deploy partisan gerrymandering to dilute votes for their opponents, creating one-party rule and polarization.

Incumbent protection rather than voting rights seem to have motivated redistricting in recent years, to the detriment of our democratic process. The Supreme Court now has a chance to alter this, as do states, by taking redistricting out of partisan politics, as California, Iowa and a number of others have done.

If more members of Congress and state legislatures came from competitive districts, we would have less of the narrow partisanship we see today. The incentive would be to govern responsibly, something little in evidence in Washington today.


Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.