“Gerrymandering in Wisconsin – The U.S. Supreme Court looks at the issue on October 3, 2017” by Barbara J. Shah, Esquire

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The term “Gerrymandering” has been the subject of a great deal of discussion this year throughout the nation. The term “gerrymander” (pronounced “Jerry-mander”) was introduced into the language more than 200 years ago, when this technique was used by then Massachusetts governor Elbridge Gerry to produce a voting district shaped like what news organizations compared to a salamander; they then began calling it a “gerrymander.”

The practice occurs when a state with weak laws regarding the power of the state legislature to set boundaries for both state legislatures and U. S,  Congressional districts, and the party with the majority uses their power to reshape those election districts to favor voters from that party, usually by “packing” (drawing district lines so that other party’s voters are all crammed into districts together often producing a 85-90% percentage of those party’s voters), or “cracking”, in which the not-in-power party’s voting districts are broken up and put in with districts where their voting power is overwhelmed or diluted by the in-power-party’s voters. Although gerrymandering has been going on for more than 200 years, the advent of computers which can assist in drawing these lines finely has made the practice nearly universal in those states whose laws give loose permission for the state legislature to draw district lines.  PA is one of them, and is considered one of the most-gerrymandered states in the nation.

This problem arises for two reasons:  there are only 435 seats in the U. S. House of Representatives, and the U.S. population increases and/or moves around.  So every 10 years we have the U.S. Census, which determines how many persons are in each state, and therefore how many representatives should be “apportioned” to each state.  PA las lost representative in the past 2 censuses (which have been gained by the Western and Southern U.S.), and it will probably lose one or two representatives in the 2020 census.  As a result each state affected must “reapportion” its voting districts to divide them up, so that each voting district within the state will have approximately the same number of voters. (Voters also move around in states, so this in-state migration also must be taken into account).  Within each state, the number of state legislators remain the same, but in states where the laws regarding how districts are weak, the state legislative district lines are often gerrymandered as well, as they apparently are in Wisconsin.

The U. S. Supreme Court has recently decided in challenges to election districts in Texas and North Carolina, that districts gerrymandered along racial lines are unconstitutional.  However, the issue about voting districts gerrymandered along political lines has so far not been seen by the U. S. Supreme Court as a question they could resolve. The Gill v. Whitford case, brought by voters who complained that gerrymandering of voting districts in Wisconsin has deprived them of their rights.  In a New York Times article on October 2, 2017, Michael Wines discusses the issues at stake.

 

The background of the Wisconsin case is that in 2010, after taking control of Wisconsin’s legislature and State Capitol, the Republicans used computer models and voting data to redraw political boundaries for the Wisconsin Assembly.  This map insured that Republicans would continue to control the majority of the seats in that legislature.  In 3 elections since the map was redrawn, Democrats have never won more than 39 of the 99 seats in that body, even though statewide the Democrats won a majority of the votes cast for Assembly candidates.

The theory behind the Wisconsin case is that in 1964 the U.S. Supreme Court ruled that political districts must contain approximately equal numbers of people, thus dividing the districts unevenly violated the Equal Protection Clause of the 14th Amendment to the U. S. Constitution. The plaintiffs in this case, a group of Democrats represented by an advocacy group, the Campaign Legal Center, are hoping to expand that one-person-one-vote principle of partisan gerrymandering.  They argue that by banishing Democrats into gerrymandered districts that make their votes effectively useless, the Republican line-drawers have violated the 1st Amendment (Equal protection clause), along with the 14th Amendment, because it “punishes” Democrats for expressing their political views by their votes.

This is not a new argument; in the past some decisions of the Supreme Court have indicated that there might be some situations in which partisan gerrymandering could violate the Equal Protection clause, but also that some partisanship is unavoidable and therefore acceptable.   In his NYT article, Wise notes that that makes the real question – the one which has “tied the court in knots” for 3 decades—tougher: Can the justices devise a yardstick that reliably measures when a gerrymander oversteps constitutional bounds?  Or would that overstep the court’s own bounds and plunge it deeper into the political thicket of legislative duties?”

Opponents of gerrymandering, such as the Fair Districts PA organization in PA, believe that the answer is clear.  Among the 54 friend-of-the-court briefs filed in this case, the Brennan Center for Justice at the NYU School of Law argue that “precisely because extreme partisan gerrymandering subverts normal politics, it cannot be addressed by normal politics.”  In another brief submitted by the Republican State Leadership Committee, they argued that a holding in favor of the Wisconsin plaintiffs “would politicize the courts and would go far beyond intervention in the ‘political thicket:’ it would impale the judiciary on its thorns.”

On the U.S. Supreme Court there are 4 justices who are likely to vote in favor of the Wisconsin plaintiffs, and four, including the new Justice Gorsuch, who are likely to disapprove of their position.  Justice Kennedy, the potential “swing” vote, has publicly stated his distaste for partisan gerrymandering, but has wrestled with the question of whether the Court could find a way to remedy it. Approximately 20 U. S. states, including PA, would be affected if the court found in favor of the Wisconsin plaintiffs.

Wise in his article quotes Richard H. Pildes, a professor of constitutional law and an election-law expert at NYU, who said in an interview, “I think this is a very important moment for the democratic system, in the United States. That’s not to say a court decision striking this gerrymander down is going to address all of the problems we’ve got, but in the absence of some sense of constitutional boundaries the pathologies of this process are just going to grow and grow.”

The question posed by anti-gerrymandering groups like Fair Districts PA is: “Shouldn’t the voters pick their legislators rather than letting the legislators picking their voters?” Many eyes and ears in the U.S. will be tuned in on the argument on this case at the Supreme Court. Much is at stake.

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