For the first time since 2004, the Supreme Court will be taking up a partisan gerrymandering case. Gerrymandering is a practice used by political parties to give one party a specific political advantage over another, and for the last several decades, it has been used by both political parties as a way to manipulate voting districts.
The case, Gill v. Whitford, marks the first time since Vieth v. Jubelirer in 2004 that the Supreme Court will hear arguments centering on the idea of “partisan gerrymandering.” In that case, Justice Anthony Kennedy was the fifth, and deciding vote in the case that allowed partisan gerrymandering to continue. At the time, Justice Kennedy had made it clear that he would be willing to readdress the issue at a later date, if future plaintiffs could come up with a case that quantified a “workable standard” in which to base partisan gerrymandering off of.
Last year a panel of 3 federal judges determined that the Wisconsin electoral map violated both the first and fourteenth amendments, and on June 19th the Supreme Court announced that they will hear arguments in the case. This isn’t the first time partisan gerrymandering has been challenged since 2004, but the Supreme Court sees the case as unique.
Why SCOTUS is Hearing These Arguments
On NPR’s “All Things Considered” Shawn Johnson explains why Gill v. Whitford is unique:
“this case is unique among other redistricting cases in the way that it went after Wisconsin’s Republican-drawn legislative map. So it’s not unheard of for a court to strike down legislative maps on other grounds – diluting the voices of minority voters, for example. But this case really sets out a challenge. It says you can actually have a redistricting plan that’s so partisan that it’s unconstitutional, that it’s a political gerrymander… “
“what these plaintiffs were trying to do is go back and look at the results in Wisconsin in 2012, for example. President Obama did very well here. It was a decent democratic year. And yet Democrats gained no seats in the legislature, remained deeply in the minority. And even in 2016, even though it wasn’t part of this lawsuit, you look at Wisconsin – it was essentially a 50-50 year for races at the top of the ticket, like in the race for president or U.S. Senate. And yet Republicans actually added seats in the legislature to the point that even though Wisconsin is a 50-50 state, they have almost two-thirds of the seats in the legislature”
The case seems to be designed to entice Justice Kennedy. In his 2004 decision, he alluded to the fact that he would be open to hearing future arguments on gerrymandering if the plaintiffs had come up with some workable standard to determine a level of partisanship. In this case, the plaintiffs have come up with something they call the “efficiency gap.”
According to NPR, the “efficiency gap” measures”
“ what they call wasted votes. Let’s say you have a strongly Democratic district. And if a Democrat got a lot of votes there, but they only get one seat, they’re saying that they wasted a lot of votes to get those seats. If Democrats come up just short in a lot of other districts, they’re saying they wasted those votes as well.
So they compare that district-by-district to the statewide total, and that gives them this efficiency gap measure. And by that metric, plaintiffs looked back at redistricting plans throughout the U.S., going back to 1972, and Wisconsin’s redistricting plan was one of the most strongly political gerrymandered in history. “
The Brennan Center for Justice further points out that the Wisconsin gerrymandering is among the worst gerrymandering cases seen in decades.
In 2012 Republicans won 60 of the states 99 legislative seats, despite only winning 48.6% of the popular vote. In 2014 Republicans won 63 of the 99 legislative seats, with 52% of the vote. The outcomes suggest that federal rules may have been violated.
Generally there are two federal rules surrounding redistricting.
- Equal Population: for congressional districts that means districts need to be “as nearly as is practicable.” This means that states must make a good-faith effort to create districts with an equal population. For local districts the threshold is lower, they must be “substantially equal” meaning largest and smallest districts generally must be within 10% of each other population wise. At the local level, legislatures have a lot more flexibility to manipulate outcomes.
- Race and Ethnicity: the “Voting Rights Act of 1965” was designed to reverse tactics like “cracking;” a redistricting tactic designed to draw each district so that there are as few minorities as possible in each district, and “packing” which is concentrating as many minorities as possible into as few districts as possible. Section 2 and section 5 of the “Voting Rights Act” are meant to protect the voting rights of minorities, ensuring that they get fair representation.
Why is This Important?
Gill v. Whitford has implications for congressional races in Florida, Michigan, Wisconsin, Ohio, North Carolina, and Pennsylvania. If SCOTUS rules on the side of the plaintiff, the “efficiency gap” standard could be applied as a barometer for the active lawsuits in the above states. This means congressional districts could be redrawn, and favored parties could face a real challenge, possibly even giving some legislatures a tough election for the first time in years.
More importantly, the case could seriously affect redistricting efforts after the 2020 census. Applying a new standard to redraw districts could put incumbents in a position of defending their seat against other incumbents, or, more likely than not, take away any unfair advantage they may have had entering the election.