Gill v. Whitford
This term, the Supreme Court heard Gill v. Whitford, a case on partisan gerrymandering, the first such case to make it before SCOTUS in 13 years.
It comes at a time when polls show that partisan politics are worsening, and the parties view one another less favorably than any time in recent history, according to Pew and Gallup polls.
Gerrymandering refers to methods of redrawing voting districts in a state that give one party or incumbent the advantage. Every ten years after the census the districts are redrawn–either by the legislature or by independent committees. So theoretically, the party in power can stay in power indefinitely if they can draw the map effectively, regardless of the popular vote.
The Federal government requires states to have roughly equal population in each district and for the districts to be geographically contiguous. It also does not allow the lines to be drawn to shut out a group based on race or ethnicity.
States have additional rules, such as requiring each district to be as contiguous or compact as possible, or requiring communities of interest (minorities) to have districts where they are a majority to allow them to elect representatives who they feel will best represent their interests. Some state laws explicitly allow partisan gerrymandering, others require that political parties have fair representation.
Before now, the Supreme Court has allowed states to make their own decisions regarding partisan district drawing without interference. However, the claim in “Gill” is that the Republican Legislature in Wisconsin drew a map that was so partisan it undercuts the democratic process. In other words, the redistricting map has rigged the election. The plaintiffs in the case point to the fact that Democrats made up a slight majority of Wisconsin’s voters, but after the districts were drawn, Republicans won 60 of the 99 seats in the legislature.
New computer mapping techniques have given legislators who want to draw partisan maps more efficient techniques to gerrymander not just for now, but for projections of the next election. These technologies also make it easier to revise maps for preferred results. The Wisconsin legislature revised the map in question ten times before they felt it was partisan enough.
Even though both parties are very guilty of gerrymandering in states that allow this (and allegedly also in states which do not), the Republican party elevated it to an art form in the 2010 redistricting maps. Wisconsin’s map is only one of the highly partisan maps that were a result of this push to take control at the state level. The plaintiffs contend that the district map is so partisan that it dilutes the Democrats’ votes to the point of making them useless and interferes with democracy. The state argues that the law allows this and that the Supreme Court shouldn’t tell them how to do their political business.
Gerrymandering: Invasive Species
Gerrymandering is a sticky problem because it has become more and more an accepted part of the American political system. It is something about which the media should be educating the reader and the reader should be seeking to be better informed.
Few voters have even a basic understanding of what it is, how it works, or why it’s allowed. Many voters think that gerrymandering is only used to cheat.
However good arguments can be made in favor of some supporting some types of gerrymandering.
Gerrymandering has been used to give districts to already underrepresented minorities who would otherwise be divided into different districts and left with no representation. Gerrymandering can also be used to allow a minority party some representation when “normal districting” leave them without any representatives.
Arguments Regarding the Case
Justice Ginsburg was concerned that hyper partisan gerrymandering would have a chilling effect on voting in general–that voters would not go to the polls because they would assume the result was preordained or because their party did not have a challenger to the incumbent or to the dominant party. Often, in heavily partisan districts, the underrepresented party considers it a waste of money to run a candidate who is sure to lose. Considering how low voter turnout is (50-60% of registered voters on average in National elections, sometimes half that in off year elections), this is a valid consideration. Americans don’t need another reason to not vote.
Several Justices asked if the plaintiffs had a workable formula for ensuring fairness while respecting the needs of minority groups and accounting for the difficulties of drawing district lines in heavily or sparsely populated areas. The plaintiffs proposed a three-part test to determine whether redistricting violated the voters’ constitutional rights. However, none seemed pleased with their three-part plan due to its percieved complexity.
Chief Justice Roberts criticized the plan as opaque to the intelligent man on the street who would call it a “bunch of baloney.” Do the Chief Justice’s questions ignore the bigger problem: as technology becomes more sophisticated, gerrymandering tactics inherently become more complicated and opaque. He does not question the opacity (sometimes by design) of the redistricting process itself.
He ignores the fact that computer modeling programs are inherently complex and invisible to anybody who doesn’t have access to the program’s algorithm–complex and invisible by design, yet he criticizes a test that would be publicly available and reproducible, whether by the press and political scientists or the voters themselves.
Accessibility for the man on the street has not been a concern for the court regarding other tests it has approved. How many normal people understand res ipsa loquiter or the law of perpetuities? (Editor’s note: I don’t think those are words.)
Perhaps it wouldn’t be as lucrative, but there is no reason why these same computer models can’t be used to create aggressively non-partisan maps that represent more closely the voter demographic. Roberts does the voter a disservice when he suggests that Americans are ignorant and fearful of book learnin’ and sciencey stuff.
Most Americans are far more fearful of secretive government programs to shut opponents (and the people) out of the voting process.
The Court is Concerned with the Court.
The court is rightfully concerned that they will be forced to decide each case individually and will be accused of favoring one party over another in any case where there is an issue. They do not wish to compromise the integrity of the court.
To be fair, challenges to the election process will ultimately land in the Supreme Court’s if they are contested enough. That is exactly the situation now.
There is no objective test and, if there is a contest, the Supreme Court is the ultimate authority who must decide each case individually. Considering how complex the computer generated district maps are now, there is no reason to think that there will not be more frequent challenges that the Supreme Court will have to rule on. Unless the court adopts a test, there is only one other way to solve the problem–get rid of gerrymandering altogether.
Some states already use independent committees rather than politicians to draw the district lines. We have examples, such as California, of how to draw districts without partisan gerrymandering. The Supreme court could establish a few tests for fairness and allow voters to challenge the district when groups do not feel they are being properly represented.
Gerrymandering Stands Between the People and Representation
In a country where partisan straits grow more dire and tumultuous every day, we need an institution that can make non-partisan decisions and allay the growing enmity between the parties
Realistically, a test or bright line standard won’t do it. It’s time for the court to take a stand against gerrymandering altogether, and then the question becomes, simply, whether gerrymandering exists in each case.
Partisan gerrymandering is directly and indirectly driving the wedge between the parties. Voters People feel less like their voices are heard and more like they are bystanders in a political drive-by shooting.
Also read: Gerrymandering: A Plague on Both Your Houses