The Supreme Court is set to take a serious look at partisan gerrymandering with a case that could jeopardize voter maps across the country and help Democrats regain control of Congress.
The case, which will be heard next term, will be closely followed by lawmakers, since the outcome could define how far state legislatures can go in drawing up district lines for partisan gain.
The case, known as Gill v. Whitford, centers on the Wisconsin map the state’s Republican-controlled legislature enacted in 2011. A three-judge panel on the federal District Court for the Western District of Wisconsin ruled 2-1 in November that the map was an unconstitutional political gerrymander.
“If state or legislative districts are dismantled, that throws the composition potentially of state legislatures and Congress into incredible flux,” said Caleb Burns, a partner at the Washington, D.C.-based Wiley Rein LLP who focuses on election law and government ethics.
“It’s well known that only a few congressional districts are in play every election cycle, and that could change from a few dozen to every single one.”
The District Court said “there is no question” that the map “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
The registered Democratic voters in Wisconsin who challenged the plan claimed Republicans employed two gerrymandering techniques in drawing the new districts: “cracking” and “packing.” Both diluted the votes of Democrats statewide, the voters say.
Cracking occurs when a party’s supporters are divided among multiple districts so that they fall short of a majority in each one. Packing takes place when one party’s backers are concentrated in a few districts that they win by overwhelming margins, reducing the total number of seats they can win.
As a result, Republicans in the state secured 60 seats out of 99 in the Assembly despite winning only 48.6 percent of the vote.
Experts say the Wisconsin case could have a major impact on battleground states, where a recent study found the most biased maps.
A Brennan Center for Justice report released in May found that Republicans picked up 16 to 17 congressional seats in the current Congress because of partisan gerrymanders. The seats, the report says, represent a significant portion of the 24 seats Democrats would need to regain control of the House in 2018.
With the exception of Texas, all of the most biased maps were found in battleground states: Florida, Pennsylvania, Ohio, Wisconsin, Michigan, Virginia and North Carolina.
But Nate Persily, a professor at Stanford Law School, said he’d be shocked if the resulting legal challenges led to maps being redrawn before the 2018 midterm elections.
Hans von Spakovsky, a senior legal fellow and manager of the Election Law Reform Initiative at the Heritage Foundation, however, said that maps could potentially be redrawn by 2020.
But the former Justice Department official, who now serves on President Trump’s voter fraud commission, noted that states would have to turn around and do the redistricting process all over again after the 2020 census data is released.
For the justices to side with the plaintiffs, experts say, they have to agree on standards for courts to separate constitutional from unconstitutional partisan gerrymanders, an issue that to date has kept them from wading too far into the issue.
In a 5-4 ruling in 2004, the Supreme Court decided not to intervene in a case challenging the redistricting plan Pennsylvania’s Republican-controlled legislature passed following the 2000 census.
In delivering the opinion of the court, then-Justice Antonin Scalia said the court “must conclude that political gerrymandering claims are nonjusticiable” because the court has not found any “judicially discernible and manageable standards for adjudicating” these claims.
Justice Anthony Kennedy said the court was correct not to intervene. But Kennedy, the court’s traditional swing vote, left the door open for future fights.
In a concurring opinion, Kennedy said that “a decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”
But he said he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Court watchers say Kennedy will be the justice to watch when the Wisconsin case comes before the court in the fall. Whether he’ll accept the test that the District Court adopted, though, is anyone’s guess.
The lower court said that for a map to be considered an unconstitutional partisan gerrymander there has to be discriminatory intent, a large and durable discriminatory effect and a lack of a legitimate justification for the partisan effect.
William Whitford, the lead plaintiff in the case, urged the Wisconsin District Court to adopt the “efficiency gap” test — one party’s total wasted votes in an election, minus the other party’s total wasted votes, divided by the total number of votes cast.
The plaintiffs claim the standard captures in a single number the extent to which one party’s voters are more cracked and packed than the other party’s voters.
But in an opinion piece for Fox News, von Spakovsky said the theory “has so many problems, it is hard to understand how a federal court could possibly give it any credence.”
“It ignores the reality of political geography that some voters who support particular political parties are naturally ‘packed’ as a result of residential patterns, not because of choices made by legislatures,” he wrote.
Election reform advocates, however, say the best way to avoid partisan gerrymandering is to remove elected leaders from the redistricting process altogether.
“My view on this is that drawing electoral districts is too important to be left to politicians and someone else should do it,” said Archon Fung, the academic dean and Ford Foundation Professor of Democracy and Citizenship at Harvard University’s Kennedy School of Government.
“Politicians almost always have the wrong incentive and bad motive in drawing maps,” said Fung, who is on the board of Common Cause, a plaintiff in a similar case pending in North Carolina.
“The motive to keep themselves in office is so, so strong regardless of whether it’s a Democratic or Republican dominated legislature.”