The Supreme Court has agreed to hear a challenge to Wisconsin’s 2011 congressional map—raising the possibility that it could rein in lawmakers’ ability to draw district lines in ways that benefit their party, thwarting the will of voters.
But the justices also put on hold a key lower court order in the case — a decision that could be a sign they’ll rule for Wisconsin on the merits.
SCOTUS announced Monday it will hear Gill v. Whitford, in which a three-judge panel ruled last year that Wisconsin’s state legislative map, drawn by Republicans in 2011 and signed by Gov. Scott Walker (pictured), is an illegal partisan gerrymander. The state is challenging that ruling. The case will be heard some time during the Supreme Court term that starts in October, and a ruling is likely to be announced by June 2018.
But an hour or so after the first announcement, the justices added that they’ve stayed the lower court’s order that the state draw new maps by November, in time for use in the 2018 election. Wisconsin had requested the stay. The five conservative justices voted for the stay, while the four liberal justices dissented.
“The granting or denial of a stay requires the Court to weigh many factors, but one of the biggest factors is likelihood of success on the merits,” Rick Hasen, an election law professor at the University of California, Irvine wrote online before the stay was issued. “In other words, granting of a stay is a good (but not necessarily great) indication that … the partisan gerrymander finding of the lower court would be reversed.”
The stakes in the case are potentially huge.
“The threat of partisan gerrymandering isn’t a Democratic or Republican issue; it’s an issue for all American voters,” said Trevor Potter, president of the Campaign Legal Center, which brought the case. “Across the country, we’re witnessing legislators of both parties seizing power from voters in order to advance their purely partisan purposes. We’re confident that when the justices see how pervasive and damaging this practice has become, the Supreme Court will adopt a clear legal standard that will ensure our democracy functions as it should.”
The justices did not rule on a request by Wisconsin to delay drawing new district lines while the case is being decided. A lower court had ordered the state to redraw the lines in advance of next year’s elections. The Supreme Court could still rule on that issue.
Newly sophisticated software has allowed lawmakers and the consultants they hire to gerrymander more effectively than ever before, threatening the basic fairness of American elections.
In the last redistricting round, which occurred in 2011, Republican state lawmakers also drew state legislative or congressional maps to their benefit in Texas, Florida, Pennsylvania, Ohio, Michigan, Virginia, and North Carolina. On the congressional level, the result was that in the 2012 election, Republicans got 10 million fewer congressional votes than did Democrats, but came away with control of the House. (On Thursday, good government groups filed a separate lawsuit against Pennsylvania’s congressional map, calling it an illegal partisan gerrymander.)
Wisconsin’s gerrymander was among the most extreme. State legislative districts were so skewed to the GOP that in 2012, Republican assembly candidates won fewer votes than Democratic candidates, yet the GOP ended up with a supermajority of seats — 60 out of 99. In 2014 and 2016, the GOP increased its supermajority, even though it got barely more votes than Democrats.
Central to Gill v. Whitford is a 2004 Supreme Court decision, Vieth v. Jubelirer, which concerned a map drawn by Pennsylvania lawmakers. In Vieth, four conservative justices ruled that partisan gerrymandering claims—that is, gerrymandering claims that don’t involve claims of racial discrimination, which everyone agrees is illegal—are purely political questions, and therefore not subjects for courts to weigh in on. The court’s four liberal justices ruled that courts should be able to rule on such cases. The ninth justice, Anthony Kennedy, ruled that the court should stay out of the Pennsylvania case, but said that there could be partisan gerrymander claims that are justiciable by courts. But he didn’t spell out in detail what those cases would look like. Which side of the line Kennedy decides the Wisconsin gerrymander falls could determine whether our system for electing representatives continues to allow lawmakers to advantage their own side at the expense of the will of voters.
The Wisconsin map was just one prong of a broader Republican plan to maintain control of the state. Also in 2011, Republicans passed a controversial law that ended collective bargaining for public sector unions, significantly weakening a key piece of the state’s Democratic coalition. The following year, they approved a strict voter ID bill. A former aide to a GOP lawmaker has said that at a private meeting, Republicans openly discussed how the bill would make it harder for Democratic-leaning groups to vote. Walker was the driving force behind both measures.