Yet even though the Supreme Court has said a political gerrymander may be so extreme that it violates the Constitution, it has never struck one down because the justices have not been able to agree on how much partisanship in map drawing is too much, or even how to measure it.
If any case could convince them that it’s time to step in and find a solution fast, it’s the one they’re hearing on Tuesday: Gill v. Whitford, a lawsuit out of Wisconsin that offers a stark lesson in just how distorted the map-drawing process has become in an era of sophisticated mapping technology and intense political polarization.
In 2010, Republicans won unified control of Wisconsin’s government for the first time in years. They were determined not to lose it anytime soon, so they turned the decennial redistricting process, which began in 2011, into a clandestine partisan operation. They set up a “map room” at a Republican-allied law firm, used refined data analyses to draw new, Republican-friendly district lines, and invited only Republican lawmakers to come in and see their new districts — after they signed nondisclosure agreements.
It worked. In 2012, the first election using the new maps, Republican candidates won 48 percent of the vote, but 60 of the state’s 99 legislative seats. The Democrats’ 51 percent that year translated into only 39 seats, yet two years later, when the Republicans won the same share of the vote, they ended up with 63 seats — a 24-seat differential. In other words, Republicans had figured out how to draw maps to lock in their legislative majority no matter how many, or few, votes they received.
This is the opposite of how democracy is supposed to work, as a Federal District Court in Wisconsin found in striking down the maps last year under both the First and 14th Amendments. It was beyond doubt, the court held, that the new maps were “designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
The court rejected the lawmakers’ claim that the discrepancy between vote share and legislative seats was due simply to political geography: Democratic voters, they said, are concentrated in urban areas, so their votes have an impact on fewer races, while Republicans are spread out across the state. In fact, that doesn’t explain why the Wisconsin maps are so skewed. Rather, political science experts point to two predictors of a successful partisan gerrymander: state legislatures under one-party control and a recent history of close elections. Wisconsin has both.
So do several other battleground states, where extremely biased legislative maps could be at risk if the court rules against Wisconsin, according to an analysis by the Brennan Center for Justice. The analysis also found that 16 or 17 Republican seats in the House of Representatives — two-thirds of the 24 seats that Democrats would need to retake control of that chamber — are a result of extreme partisan bias in the drawing of district lines.
In recent years, Republicans have benefited far more from extreme gerrymanders, because of political trends and accidents of timing, but both parties are guilty of skewing maps when they’re able to. So how can the court get past its ambivalence and strike down clearly unfair maps?
There are several straightforward ways to measure the degree of partisanship. The plaintiffs have pointed to one in particular, called the “efficiency gap,” which looks at the difference between each party’s “wasted” votes. That means every vote cast for its losing candidates, and all votes for its winning candidates above the bare majority needed to prevail. The greater the difference, the higher the partisan bias in the maps.
Measures like this could appeal to Justice Anthony Kennedy, who said in a 2004 case that he was open to the possibility of a standard that would allow the court to rule on partisan gerrymanders. Justice Kennedy, as usual, holds the key vote on the issue, since the four more liberal justices are probably prepared to strike down Wisconsin’s maps, while the four conservative justices are likely to say the court shouldn’t get involved in the political process. But extreme gerrymandering is a problem that by definition can’t be fixed through the normal political process, since the whole point is to make it hard or impossible for certain voters to make their voices heard. That’s not government of the people; it’s government in spite of the people.
The better, although not perfect, solution is to take map drawing away from self-interested politicians and put it in the hands of an independent or bipartisan commission, as more than a dozen states have done, helping to make races both more competitive and less partisan.
Until that happens everywhere, the court must step in and stop the most egregious gerrymanders. If it refuses to, the problem will only get worse.
Source: New York Times