Welcome back to Legal Geek. This week, we take a look at one of the more interesting Supreme Court cases of this term about to come up for oral argument, the partisan gerrymandering case entitled Gill v. Whitford.
https://archive.org/details/LegalGeekEp116
https://archive.org/details/LegalGeekEp116
Gerrymandering is a fun word, but most people do not know what it means. Gerrymandering is the practice of drawing electoral district lines to determine what regions vote for what politicians, in such a manner that attempts to provide an advantage for a political party, or a race, or some other group. As most states reconsider and redraw their districts every 10 years following the Census, this practice is a concern that comes up periodically in some parts of the country.
This Supreme Court case stems from Wisconsin, where republicans narrowly took control of the state legislature and the governor's mansion in 2010 during the post-Obama rising tide of that party. This was the first time in over 100 years that party had such control of all branches of state government. When the Census came out and the electoral districts were to be re-drawn, the Wisconsin GOP leadership secretly planned and then pushed through a new set of electoral districts that was highly tailored to maximize all advantages Republicans could have in the state.
For example, one city in Wisconsin that had previously been a Democratic stronghold was split between two districts and combined with republican suburbs in such a way that Republicans held a strong lead in both new districts. Between 2008 and 2012, this district swung from being +20% for Obama to +8% for Romney. Gerrymandering can work because by drawing the lines in such a way that one party's votes are wasted more, such as by being in overwhelmingly one-sided districts in their favor or in close districts not in their favor, does end up having a big effect on outcome.
For example, the state of Wisconsin has swing back to leaning democrat, but despite having only 48% of the popular vote statewide, the republicans won 61% of seats in the state legislature last year. That's a 13% efficiency gap, and it all stems from this alleged gerrymandering. Other states beyond Wisconsin have had similar issues crop up, including in favor of Democrats, but none have reached this level of efficiency gap between popular vote and actual results. So this appears to be the perfect fact pattern to see if the Supreme Court will step in.
The last time this issue came up at the Supreme Court was 2004, and the decision was 5-4 declining to consider a gerrymandering claim. Four conservative justices deemed this outside the scope of courts, as a purely legislative matter, while Justice Kennedy was a fifth justice who wrote a concurring opinion noting that actual standards or a test would need to be developed for him to be comfortable with weighing in on such an issue. With Kennedy still being the swing vote on today's court, the plaintiffs are trying to create a fact pattern and a test based on the efficiency gap numbers and the actual intent of the legislature making the gerrymandering to address his concerns from 2004 regarding no clear test for what is constitutional and what is not.
The bottom line is, this will be a fascinating case, as it pits the conservative tendencies of Kennedy and other similar justices to say out of realms courts do not normally belong in, with the realities of legislatures going out of control and effectively stacking the deck against a majority of voters in a state like Wisconsin. If the Supreme Court does not act on this case, gerrymandering based on political partisanship is something that may never go away in some states. We will keep you apprised as the case develops further.
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