As Campaign Finance Center attorney Paul Smith arguing for the plaintiffs in Gill v. Whitford told the Supreme Court earlier this month, "gerrymanders now are not your father's gerrymander." This case challenges the extreme partisan gerrymander of the 2011 map for districts in the Wisconsin state legislature.
Full disclosure: I signed an amicus brief in Gill with 11 other constitutional and election law scholars arguing that the Wisconsin map violated the First Amendment. The argument was based on the First Amendment's right of free association. Not only does someone have the right to join with others to exercise political influence, such as joining a political party, but a person has the right not to be discriminated against because of their tie to that organization. I was in good company in trying to persuade the court. More than 50 amicus briefs have been filed in the case. The reason everyone wants to get a word in is because Gill could set the standards and rules for how district lines are drawn in the future.
The origins of the case lie in secret Wisconsin state legislative electoral maps drawn by Republicans, who controlled both houses of the legislature, after the 2010 census. Democratic lawmakers (and even some Republicans) were shut out of the process. Litigation in the lower courts revealed that the maps were revised multiple times so the Republicans would gain maximum partisan advantage. The three-judge panel that first heard the case found the Wisconsin map violated the constitution and then ordered the legislature to redraw the map. That effort was put on hold as the matter went to the Supreme Court.
"Gerrymandering" is the pejorative word used to describe the drawing of district lines that favor one party or another. One of the ways gerrymanders can thwart the will of the voters is when district lines are drawn in such a way that minority of voters can wind up electing a super-majority of legislators. A clever gerrymander -- or many would argue -- a pernicious gerrymander can thwart the will of voters by allowing a minority (or a narrow majority) to elect a super-majority of legislators. This is precisely what happened in the 2012 and 2014 elections for the 99-seat Wisconsin Assembly. In 2012, Republicans won 60 Assembly seats despite winning only 48.6 percent of the two-party state-wide vote; in 2014, they won 63 seats with only 52 percent of the state-wide vote. Thus in its worst form, gerrymandering thwarts the democratic norm of majority rule.
Gerrymandering is also a source of incumbent protection and partisan advantage. When lawmakers draw their own lines, politicians pick their voter instead of the other way around. Politicians can look at voting patterns and cut out voters from neighborhoods that historically vote for the other party -- thereby creating skewed safe districts for incumbent politicians.
But courts have traditionally been reluctant to resolve redistricting disputes, heeding Justice Felix Frankfurter's 1946 warning that courts "ought not to enter the political thicket." For most of American history, courts considered redistricting fights nonjusticiable -- meaning the courts would not hear them.
But state legislatures proved they could not be trusted with redistricting. By the time the Warren Court examined the results of decades of judicial neglect, they found states with such wildly different sized districts that voters' votes literally had different weights. Over Frankfurter's vigorous dissent, the Court ruled in Baker v. Carr in 1962 that not only could the courts hear redistricting cases, it set the standard of "one-person, one-vote," meaning that each district should have equal population.
The Supreme Court has also ruled that gerrymanders that favor a particular race are disallowed. But the court has struggled with the issue of whether partisan gerrymanders -- those that favor a particular party -- are also forbidden. Back in 2004, in Vieth v. Jubelirer, the court came close to ruling that partisan gerrymanders are nonjusticiable, but Justice Anthony Kennedy was not ready to totally close the courthouse door to such claims.
Which bring us back to Gill v. Whitford and its importance. Back in July, Justice Ruth Bader Ginsburg said Gill "is perhaps the most important" case the court has chosen to hear this term. At oral argument, Ginsburg again emphasized the stakes: "I would like to ask you what's really behind all of this: The precious right to vote. If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it's a Democratic district or a Republican district, the result -- using this map, the result is preordained in most of the districts. … Would we have that result when the individual citizen says: I have no choice, I'm in this district, and we know how this district is going to come out? I mean, that's something that this society should be concerned about?"
Gill gives the Supreme Court a chance to decide whether courts can hear partisan gerrymandering claims, just in time for the next round of redistricting after the 2020 census. As Smith implored the Justices to recognize: "we're here telling you [that] you are the only institution in the United States that can … solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse."