Partisan gerrymandering exists because the Supreme Court allows it to exist. Although such gerrymanders are a form a viewpoint discrimination, which violates the First Amendment, Republican appointees to the Supreme Court have been reluctant to even let federal courts consider partisan gerrymandering cases — much less strike down actual gerrymanders.
That could all change, however, as the Supreme Court just announced it will hear Gill v. Whitford, a case that presents the most promising challenge to a partisan gerrymander in more than a decade. In Whitford, a divided three-judge panel held, in an opinion by Reagan-appointed Judge Kenneth Ripple, that Wisconsin’s state assembly maps violate the Constitution.
Notably, the plaintiffs’ arguments in Whitford are tailor-made to address a concern Justice Anthony Kennedy, the Court’s ostensible “swing” vote, raised in a 2004 opinion. In Vieth v. Jubelirer, the Court’s other conservatives joined an opinion by Justice Antonin Scalia, which would have slammed the door on partisan gerrymandering suits entirely. Kennedy, however, left the narrowest of cracks open in his separate concurrence.
Though Kennedy worried about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” — that is, the fact that it is difficult to come up with an objective test courts can use to determine which maps are gerrymanders — he also concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
Whitford accepts this challenge by proposing a mathematical formula that judges can use to identify partisan gerrymanders. Gerrymanders work by forcing one party to “waste” votes. Voters are either “cracked,” pushed into districts where their party has no chance of winning; or “packed,” crammed into districts where their party has such an overwhelming majority that additional votes for their candidate are superfluous.
A gerrymander, scholars Nicholas Stephanopoulos and Eric McGhee, who devised the formula at the heart of Whitford, explain “is simply a district plan that results in one party wasting many more votes than its adversary.”
Stephanopoulos and McGhee’s formula counts the number of wasted Democratic votes that results in an election held under a particular map, and compares it to the number of wasted Republican votes. Maps that create a large disparity may then potentially be struck down as gerrymanders if the plaintiffs can also show that they were drawn with partisan intent.
I note this primarily because it’s always of interest when SCOTUS takes up a redistricting case, but also because as the Trib notes, there could be an effect on Texas as well.
But the cases are very different: The Wisconsin case revolves around whether partisanship played too large a role into redistricting, while the Texas case focuses on race. In fact, part of Texas’ argument claims redistricting was indeed based on partisanship — something courts have allowed in the past. “A rule against partisan gerrymandering will have a major impact for communities of color, where partisanship unfortunately has often been used as an excuse for actions that hurt minorities,” [Michael Li, redistricting and voting counsel at New York University’s Brennan Center for Justice] said in a statement.
What’s next? It’s unclear if the Wisconsin case, which the U.S Supreme Court is set to consider in its term that begins in November, could affect the pending case in Texas, because of the different timelines and arguments being made. And the justices must also decide whether they even have the jurisdiction to rule in the Wisconsin case, a question they left open in accepting the case. But the high court could ultimately establish a new limit on the role politics plays into redistricting. If that were to occur, it would almost certainly affect map drawing in Texas going forward and give opponents of the current Texas’ maps a new avenue to challenge them.
The Michael Li statement is here. It seems likely to me that we will have a new Congressional map in Texas for 2018 based on the existing litigation, but there could be further action in the future after SCOTUS rules in the Wisconsin case. I should note that while Wisconsin is one of several particularly egregious states in terms of legislative gerrymandering – we’re talking states that are basically 50-50 at the Presidential level (or considerably bluer, as is the case in Virginia) but where Republicans have a two-thirds majority or close to it in their state House and Senate – Texas isn’t that ridiculous. Going by recent statewide results, you could argue Dems “deserve” somewhere between 58 and 65 House seats, and 12 or 13 in the Senate. That’s not out of the question for them next year if the 2018 winds blow favorably. We’ll see where this goes, and as always all eyes will be on Anthony Kennedy, our true lord and master. Daily Kos, the DMN, the WaPo, Texas Redistricting, and Rick Hasen have more.