What Will/Can the Supreme Court Do about Partisan Gerrymandering?

The post What Will/Can the Supreme Court Do about Partisan Gerrymandering? appeared first on WhoWhatWhy.

Until recently, the power of state legislatures to hijack elections went unchallenged. Lawmakers abused their privileged duty to design their own voting districts by employing a discriminatory precision that essentially nullified the voices of countless voters and ensured the party in charge could continue to dominate future elections.

However, those days may soon be behind us as the Supreme Court prepares to issue its decision in Gill v. Whitford, which could help tame rampant partisan rigging of district maps.

Prior to Gill, governing bodies had long struggled to reach a consensus on how to test whether lawmakers had engaged in unconstitutional partisan gerrymandering. But thanks to the availability of new statistical analyses, it is now possible to determine exactly how many seats were swung to one side of the aisle or another as a result of gerrymandering.

Soon, the nation’s highest court will not only determine if a Wisconsin court was correct in deciding that state Republicans committed the unconstitutional sin; experts expect this decision to also determine which entities should be making these judgments in the first place.

This could have massive implications on how legislators map out their congressional districts, and may finally liberate Americans from this manipulative, partisan weaponry, bringing us one step closer to representatives actually serving constituents and not their own interests and that of their donors.

WhoWhatWhy spoke with Justin Levitt, law professor and associate dean of the Loyola Law School, whose website All About Redistricting tracks the drawing of electoral district lines all around the country. Levitt spells out the implications of this landmark case, as well the historical context that brought us to this decision point.

Where necessary, this interview has been edited and re-arranged for the sake of brevity and clarity.

Considering racial gerrymandering was, for the most part, deemed unacceptable a while back, can you explain why partisan gerrymandering has been allowed to persist up until this case?

The short version is that the courts have been pretty leery of stepping into something as deeply political and partisan as redistricting; it was only in the ‘60s that the courts decided to get into business at all.

And that was really only in situations where race was the primary factor in gerrymandering, right? I guess I’m trying to understand why the courts were willing to address the racial component, but not the partisan one?

In some ways, racial strife is one of the sins of the original Constitution, and we’ve been trying to exorcise it since, so it’s not particularly surprising that the courts would be particularly sensitive around racial matters. We had a doctrine about racial discrimination out of the Fourteenth Amendment for almost a hundred years before we had doctrines about gender discrimination — in part because the racial problems were recognized as bigger, sooner; [and] in part because slavery is unlike any other institution there was.

So what’s changed? Why are we now suddenly seeing this reversal of the courts’ reluctance to address partisan gerrymandering?

I don’t know that it’s “suddenly”, and I don’t know that that reluctance has changed. Part of the reason [the] court is taking this case is to decide whether it’s reluctant.

It’s rare, but there are some things that may be unconstitutional, but it’s not for the courts to decide when [they violate the Constitution]. Those decisions are either left up to Congress, or to the president, or other branches [to] fight it out.

So the fight over how much is too much, and who should decide, has been the fight for hundreds of years.

If you look back at the last time the court engaged this issue, which was 2004, the decision is really a good microcosm of the debate, and it’s a good way to set up what may be coming.

Can you elaborate on that?

The debate in 2004 was a case out of Pennsylvania called Vieth v. Jubelirerand; there was an allegation that the Pennsylvania legislature had gerrymandered on partisan lines. All nine justices agreed that too much partisanship in the redistricting process was unconstitutional, but they had vigorous disagreements over how you know how much is too much, and who should decide how much is too much.

And there are still strains of all of those [2004 viewpoints] on the court: I think there are some justices who think the court has no business in this area, there are some who think the court absolutely should be deciding these things and they [believe they] have the right idea about how [to do so], and there are a few who are waffling and trying to figure out whether the ideas other people have proposed are ideas they can sign up for.  

Related front page panorama photo credit: Adapted by WhoWhatWhy from President Trump visits the US Supreme Court (Fred Schilling / US Supreme Court).