If Wisconsin’s partisan gerrymander is upheld, a “festival of copycat gerrymandering” in 2020 will lead to a loss of faith in American democracy, the Supreme Court was warned Tuesday.
And, though it’s impossible to predict, there were some signs that the court’s swing vote, Justice Anthony Kennedy, may agree.
The Supreme Court heard oral arguments Tuesday in Gill v. Whitford, in which Wisconsin Democratic voters claim the state Assembly map, drawn by Republicans in 2011, is unconstitutionally skewed to the GOP. In both 2012 and 2014, Democrats won a majority of the statewide Assembly vote, but Republicans emerged with over 60 percent of the Assembly seats.
Paul Smith, a lawyer for the plaintiffs, on Tuesday called the map “so extreme that it effectively nullifies democracy.”
Lately, the issue of gerrymandering has exploded into the public consciousness. At the start of the decade, Republicans used their control of the redistricting process in numerous large states to draw state legislative and congressional maps to their advantage. The current congressional map so favors the GOP that experts predict Democrats will need to win about 55 percent of the vote next year in order to regain control of the House. A recent Brennan Center report found “clear evidence that aggressive gerrymandering is distorting the nation’s congressional maps,” posing a “threat to democracy.”
A ruling striking down the Wisconsin map could make it much harder for states to create new gerrymanders in 2021, when districts will be redrawn again.
The court’s four liberal justices appear all but certain to vote to strike down Wisconsin’s map.
“If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote,” asked Justice Ruth Bader Ginsburg on Tuesday. “What becomes of the precious right to vote?”
Four of the court’s five conservatives, meanwhile, are very likely to vote to side with the state. That leaves Kennedy.
The swing justice several times Tuesday pointedly asked lawyers for Wisconsin whether it would be constitutional for a state to pass a law requiring that maps be drawn to favor a certain political party, even while conforming to traditional redistricting principles. Kennedy’s point seemed to be to establish that there is a certain level of partisan intent in redistricting that would go too far.
By contrast, Kennedy asked not a single question of Paul Smith, the lawyer for the Democratic plaintiffs.
Kennedy’s record suggests his vote is winnable for the plaintiffs. In the last redistricting case to come before the court, in 2004, he was part of the majority that upheld a Pennsylvania map. But unlike some others in the majority, he suggested that if the challengers in a future case could come up with a workable standard showing when a partisan gerrymander went too far, he might rule differently.
In Gill v. Whitford, lawyers for the plaintiffs have aimed to provide that standard. They’ve presented several formulae, drawn up by political scientists, that seek to measure how closely a given map correlates a party’s vote share to the number of seats it wins.
Chief Justice John Roberts, ever the institutionalist, said he worried that relying on complex statistics to make judgments with partisan implications could lead Americans to lose faith in the court. People won’t believe that the court ruled for one party over the other because of a mathematical formula, Roberts said. Rather, they’ll think it must be “because the Supreme Court preferred the Democrats over Republicans.”
“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,” Roberts warned.
Of course, as the election law professor Rick Hasen noted Tuesday, that ship may already have sailed.
And Smith, responding to Roberts, pointed to a seemingly bigger danger in the opposite direction.
“If you let this go … you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen,” he predicted, noting that increasingly sophisticated software and an ever-more polarized electorate will make skewing the maps in one side’s favor even easier next time around.
“And it may be that you can protect the court from seeming political,” Smith continued. “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.”
Photo: The Supreme Court, Washington, D.C. (Creative Commons)