By Ipankonin [Public domain], via Wikimedia Commons

June 19, 2017; NPR, “The Two-Way”

The question of whether gerrymandering, the drawing of political districts and boundaries to advantage a particular party or group, is constitutional has been a subject of lower federal court decisions since near the founding of this country. Both lower federal courts and the Supreme Court have ruled on cases of gerrymandering, but all have made determinations based on the disenfranchisement of voters based on race. This could all change with the case of Gill v. Whitford. This case addresses the redistricting in Wisconsin and turns on the issue of political party, not race. The implications are many and will have big ramifications for all states as they redistrict following the upcoming 2020 census.

NPQ has reported before on the issues of gerrymandering and the Supreme Court. In January 2017, Erin Rubin wrote,

Every ten years, new census results in hand, states redraw the boundaries of their political districts. These districts elect state and local representatives for themselves, and their votes are tallied in groups for larger elections. Ever since Patrick Henry first tried to deny James Madison a Congressional seat, it has been the practice of politicians to draw districts that favor their own parties. After their significant loss in 2008, Republicans have been winning local elections and drawing boundaries that help them keep a hold on power.

Last month, the Supreme Court ruled that two districts in North Carolina were unconstitutionally drawn, based on race. The arguments coming from the state were that these districts were drawn based on party, not race, and that the courts, including the Supreme Court, had allowed this as valid. NPQ reported on this in May 2017, following this Supreme Court decision.

The states in past cases contended their efforts were partisan attempts to protect their majorities, which the Supreme Court in the past has allowed, rather than attempts to diminish the impact of minority voters, which is forbidden. The drawing of state and congressional districts is a state function and in most states is led by whichever political party is in power. In the North Carolina case, the justices felt that too much emphasis was put on jamming African American voters into a limited number of districts, thus limiting their voting power and influence in other districts in the state.

The Court has not ruled on purely on the issue of party as opposed to race, as the two are often viewed as commingled. The contention that race and party are not synonymous is part of what will be before the Court in the fall of 2017 when this case is heard.

At the core of the problem is a lack of a measurable standard for determining if the districts are drawn on a purely partisan basis. That measure may now exist: The defendants in this case, Gill v. Whitford, claim to have come up with such a standard. Here’s how Shawn Johnson of Wisconsin Public Radio explained it.

The metric that they came up with, they called the efficiency gap, and it 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 “efficiency gap” was critical in the lower federal court’s decision, which will now be heard by the Supreme Court.

The importance of this measure is not lost on those who are advocating for voter rights and the elimination of such voter suppression measures as strict voter ID laws. This case is also significant because it is Wisconsin, and not a southern state, before the Court. The plaintiffs in this case are focused on voter rights.

“I’m grateful the Supreme Court will hear our case and listen to our stories of how we are harmed,” said Wendy Sue Johnson, one of the 12 plaintiffs challenging the Wisconsin State Assembly Districts in Whitford, in a statement.

“No matter which side of the aisle you’re on, we should all be able to agree on one thing: as voters in a democracy we should have the right to freely choose our representatives rather than endure a system where politicians manipulate our district lines, dilute our votes, and choose their own constituents,” Johnson said. “The Supreme Court’s ruling could give us back our right to have our vote count.”

Once again, all eyes will be on Justice Kennedy, who will most likely be the swing vote in this case. In past cases, he has voted to uphold partisan voter ID laws, but he has expressed willingness to consider a challenge to a partisan gerrymander. His positioning in this case will be key. It should be noted that the Supreme Court also issued a stay on the lower court ruling that Wisconsin should immediately begin redrawing its maps. This could leave the current districts intact for the 2018 election. Justice Kennedy voted for the stay.

Short- and medium-term implications of this case could favor one party over the other, but much more is at stake in the long term. As election law expert Rick Hasen stated, “If the Supreme Court actually decides to rein in partisan gerrymandering, I think it would have the effect of helping Democrats in the short term, because there are more legislatures that are controlled by Republicans. In the long term, it would help to assure that districting as a whole would be more likely to represent the interest of the voters and the jurisdiction as a whole.”—Carole Levine