Justices weigh partisan gerrymandering in potential landmark case

Justices weigh partisan gerrymandering in potential landmark case
© Greg Nash

The Supreme Court appeared hesitant Tuesday to issue a ruling that creates a standard for determining when states have engaged in unconstitutional partisan gerrymandering, the process of drawing voter districts to increase the political power of one party over another.

Chief Justice John Roberts said such a ruling would raise legal challenges to voter maps across the country that will inevitably make their way to the court.

Regardless of the standard created, Roberts expressed concerns that the public will think the court is favoring one party over another. 

“And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” he said. 

The blockbuster case, which centers on Wisconsin voter maps that were struck down by a lower court last year, has drawn national attention for its potential to reshape the political landscape.   

Actor and former California Gov. Arnold Schwarzenegger (R) and Wisconsin Sen. Tammy BaldwinTammy Suzanne BaldwinSenate campaign fundraising reports roll in Listen: EMILY’s List upbeat about Dem House in '19 Bolton to spend M boosting Wisconsin Senate candidate MORE (D) were seen in the audience for arguments.

Democratic voters from 11 state legislative districts, led by lead plaintiff William Whitford, claim Wisconsin’s Republican-controlled legislature drew the map with a discriminatory intent, violating their First Amendment right to free political speech and their 14th Amendment right to be treated equally under the law.

Under the maps, Republicans won 60 of the 99 seats in the state Assembly with 48.6 percent of the two-party vote in 2012 and 63 of the 99 seats with 52 percent of the vote in 2014.

The voters’ attorney, Paul Smith, pushed back against Roberts’s concerns, claiming the court must step in and resolve the issue.

“If you let this go, if you say we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen,” he warned.

“And it may be that you can protect the court from seeming political, but the country is going to lose faith in democracy big time because voters everywhere are going to be like the voters in Wisconsin and [say], 'No, it really doesn’t matter whether I vote.'”

Justice Sonia Sotomayor wanted to know why the Wisconsin legislature settled on what she called “the most extreme” partisan map when it had previous drafts to choose from.

“But they kept going back to fix the map to make it more gerrymandered,” she said. “That’s undisputed.”

Wisconsin Solicitor General Misha Tseytlin said there was no constitutional requirement for the state to adopt a more traditional map.  

“That’s the point,” Sotomayor said.

All eyes were on Justice Anthony Kennedy for the hourlong arguments, but the court’s frequent swing vote gave little insight to how he could fall on the case. 

Kennedy left the door open for the court to resolve the issue in a 2004 case known as Vieth v. Jubelirer if a “limited and precise” standard could be found to determine whether an unconstitutional partisan gerrymander had occurred in redistricting.

Erin Murphy, who argued on behalf of the Wisconsin state Senate, claimed the Democratic challengers have failed to come up with a “workable standard” for determining when the inherently political task of districting becomes too political for the Constitution to tolerate.

The standard voters have proposed, known as the “efficiency gap,” is calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, then dividing that by the total number of votes cast.

But Kennedy wanted to know if it’s legal for the state to have a law or constitutional amendment that says the factors in redistricting must be used in a way to favor one party over another.

He grew agitated when Murphy failed to directly answer if the law would be a violation of the First Amendment or the Equal Protection Clause.

She claimed it depends on who has standing — something the state argues the Democratic challengers in the case are lacking. 

“Well, assume standing,” Kennedy said, seemingly annoyed. “I’d like the answer to the question.”

Murphy admitted the law would be unconstitutional on its face and could be considered a violation of equal protection and the First Amendment. 

Other members of the court, meanwhile, were skeptical of whether the voter’s standard was the right solution. 

“Gerrymandering is distasteful, but if we are going to impose a standard on the courts it has to be something that’s manageable and it has to be something that’s sufficiently concrete,” Justice Samuel Alito said. 

Alito questioned how sufficiently the “efficiency gap” has been tested. 

“Is this the time for us to jump into this?” he asked. “Has there been a great body of scholarship that has tested this efficiency gap? It’s full of questions.” 

The state of Wisconsin claims a ruling affirming the lower court’s decision could lead a third of all maps drawn in the last 45 years to be challenged.

Justice Ruth Bader Ginsburg, meanwhile, seemed to suggest that the consequences of partisan gerrymandering are too great for the court not to act. 

If the results of elections are pre-ordained in most districts, she said, “what becomes of the precious right to vote?” 

The court’s newest justice, Neil Gorsuch, however, seemed unconvinced that the court even has jurisdiction under the Constitution to resolve the issue. 

“And where exactly do we get authority to revise state legislative lines?” he asked. “When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear.”

But Smith argued that politicians like gerrymandering too much to be trusted to fix it themselves.

“We’re here telling you, you are the only institution in the United States that can solve this problem,” he told the court.