Proponents and opponents of partisan gerrymandering wait with bated breath for the Supreme Court to commence its October term, as Justices are set to hear arguments regarding the 2010 redistricting map in Wisconsin. The lower court has already deemed the map an unmistakable case of politically motivated gerrymandering that defies the Constitution. Partisan gerrymandering refers to the practice whereby voting districts are purposely drawn to benefit one political party over the other. Democrats in Wisconsin fear that the gerrymandered map ensures the continuation of a Republican majority in that state.
Davis v. Bandemer
The gerrymandering question has been heard by the Supreme Court on a number of occasions. In 1986, in Davis v. Bandemer, a plurality of Justices found that in order to prove partisan gerrymandering, one must show, not only that there was a political intention, but that the newly drawn map had demonstrably negative effects for the opposing party. According to the court, losing a single election would not suffice to prove such negative effects. It’s important to note, the Court admitted, its “own view may be difficult of application.”
Devising an Effective Test
Several decades later, in 2004, the Supreme Court effectively abandoned the Bandemer test, partially due to the fact that it was a plurality opinion – and thus lacked the authority of a majority – and partially due to the flimsiness of the proposed procedure. Justices in Vieth v. Jubelirer did not fare much better. They, too, found themselves mired in the uncertainty of a plurality opinion, with former Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas joining Antonin Scalia in a non-binding decision that such claims are non-justiciable, meaning the Supreme Court should not even consider partisan gerrymandering cases. Why? According to Scalia’s opinion for the plurality, “One of the most obvious limitations imposed [on the Court] is that judicial action must be governed by standard, by rule.” Absent said rule, the Court could not advance an opinion on the matter.
Kennedy’s Key Remarks
However, a fifth voice articulated a concurring opinion, in Vieth, that would open the possibility for future gerrymandering claims in the highest court. As expected, Justice Anthony Kennedy found that though no test could be discovered in the short term, one might be discovered at some point and therefore the court should not deem partisan gerrymandering non-justiciable.
Whitford v. Gill
Then, in 2016, a retired legal professor named William Whitford led the charge against partisan gerrymandering in Wisconsin, arguing before the United States District Court that Republican legislators used packing and cracking techniques to benefit their own party.
In 2012, Whitford argued, these techniques allowed the Republicans to secure 60 out of 99 State Assembly seats, while only winning 49 percent of the vote. The results were even more disparate in 2014 and 2016. To illustrate this disparity, the plaintiffs proposed the efficiency gap (EG) as a measurement to be used in determining the effects of partisan gerrymandering. Simply put, the EG counts the amount of “wasted votes” in a given election.
In a split decision, the lower court found in favor of Whitford, concluding that though politics inheres in all cases of gerrymandering, the results in this case were egregious and clearly demonstrated a “burden” on “the representational rights of Democratic voters.”
Now the Supreme Court will have to determine whether the District Court’s proposed standard passes muster. The lower court utilized a tripartite test to make its determination: first, discriminatory intent had to be shown. Second, there had to be demonstrable (and “durable”) effects. Third, it had to be shown that there was no satisfactory justification when the map was originally drawn – for instance, in this case, the District Court found that though alternate versions of the map existed, Republicans chose the one that suppressed the Democratic party.
The highest court must also determine, by way of this test, whether the 2010 map is in fact unconstitutional.
For those opposed to partisan gerrymandering, there’s reason to be pessimistic about the outcome of this case. When the defendant requested a temporary stay on the lower court’s order requiring the state legislature to draw a new map by the fall, Justices affirmed with a 5-4 vote. Since, in making this decision, Justices must consider whether the petitioner will succeed in oral arguments, this early vote does not portend a positive outcome for Whitford.
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