Gill v. Whitford, the gerrymandering case heard last week by the Supreme Court, involves two lines. One is an actual line, meaning the contours of voting districts within a state. The other is the abstract line known as “justiciability,” meaning whether this voting question should be decided by the court (“justiciable”) or whether it should be left to the legislature (“political”).
Gerrymandering is nothing new. In 1812, the Governor of Massachusetts, Elbridge Gerry, redistricted the state to benefit the Democratic Republican party. The result was a district north of Boston shaped like a salamander. Thus the word “gerrymander.”
Electoral districts for Congress, state legislatures, and various other offices change every ten years following the Census. Boundaries need to be redrawn to reflect population shifts so that every person’s vote gets more or less equal weight. That requirement of proportional representation comes from Baker v. Carr, the Supreme Court’s “one person one vote” decision.
Who draws these boundaries? The answer is “politicians,” meaning state legislatures, and therein lies the problem. Following Governor Gerry’s example, part of our bipartisan political heritage is that the majority party makes “adjustments” that will tip the scales in its favor. But algorithms have come a long way since the slide rule days of the early 1800s. Today’s gerrymandering technology is so sophisticated that it can virtually guarantee that the party in power stays in power.
Following the 2010 census, the Republican Party of Wisconsin, which controlled both the legislature and the state house, drew new lines. And, in 2012, republicans won 60% of the house seats even though democrats won a majority of the statewide vote.
To explain in simple terms how this happens, if you create districts in dense urban areas, democrats win by large margins. If you draw district lines in more rural areas to include roughly the same number of people, the algorithm enables you to stack the deck in favor of republicans, whose candidates win by smaller margins. That is what Wisconsin did, predicting with stunning accuracy what the new map would accomplish.
A professor named William Whitford, joined by several other registered Wisconsin democrats, decided that things had gotten out of hand. Their federal court complaint alleged that the gerrymandered electoral map was unconstitutional and “profoundly undemocratic.”
There are two ways of looking at the constitutional question. One is whether the state has deprived some of its voters of equal protection of the laws, which the Fourteenth Amendment says it may not do. The other is whether the state has abridged their First Amendment rights of free speech (voting) and free association (party membership).
By a 2 to 1 decision, the three-judge court in Wisconsin found that the map was so lopsided that it would take an “unprecedented political earthquake” to dislodge it. The majority was persuaded by social science and statistical evidence, including something called the “Efficiency Gap,” which measures the extent to which gerrymandering gives one party an undue advantage over the other. ccordingly, the court ordered the state assembly to redraw the lines, and the State of Wisconsin appealed.
At the October 3 hearing, eight of the nine Supreme Court Justices engaged in a lively dialogue with the opposing lawyers. (Justice Thomas, following his usual practice, did not speak.) Justice Alito called gerrymandering “distasteful,” but seemed unwilling to wade into what Justice Frankfurter called a “political thicket,” the term he used in 1962 when he dissented from the one person-one vote decision. Justice Gorsuch, the new Justice on the block, asked where the Constitution gives the Supreme Court the right to tell state legislatures how to draw electoral lines. Justice Ginsburg answered his question with a question. “Where did one-person/one-vote come from?”
I doubt that the Justices will agree on this question of “justiciability.” Assuming for the sake of this article, however, that at least five Justices agree to address the problem on the merits, the issue will become whether the Constitution requires at least an approximation of “partisan symmetry.”
Justice Kagan seems to believe that the Court could establish standards that election officials and lower courts would be able to follow. Her view is that gerrymandering science is not some kind of “hypothetical airy-fairy” guesswork but rather “pretty scientific.” Chief Justice Roberts doesn’t agree. He called it “sociological gobbledygook.”
Most Supreme Court watchers believe that Justice Kennedy will, once again, cast the deciding vote. He has often sided with the conservative bloc, as he did in such 5-4 decisions as Bush v. Gore, the gun ownership case, and Citizens United. On the other hand, he is no stranger to equal protection, having written the Court’s 5-4 opinion in the gay marriage case.
At the hearing, Justice Ginsburg asked, “What becomes of the precious right to vote?” My guess is that Justice Kennedy will answer that rhetorical question by voting with the “liberal” bloc to do something about this type of extreme “outlier” case. That won’t mean the end of political gerrymandering, but it will, at least, impose some limits. Otherwise, in the words of Paul Smith, the lawyer who argued the case, “in 2020 you’re going to have a festival of copycat gerrymandering the likes of this this country has never seen.”