The End of the Gerrymander

What must be understood about political gerrymandering is that it has been recognized as a force in party politics since before the framing of the U.S. Constitution. So it came as a surprise when a district court struck down the district map of Wisconsin drawn by the Wisconsin state legislature in 2010 as an unlawful partisan gerrymander. Late Justice Scalia would be outraged if he knew the courts were entertaining such challenges to district maps as the current U.S. supreme court case, Gill v. Whitford.

The case currently under consideration by the Supreme Court discusses whether the Wisconsin redistricting plan, drawn in 2010 by a Republican local government, is constitutionally permissible. It has received national attention and has been hailed by both Republicans, including Arnold Schwarzenegger and John Kasich, and Democrats as being the end of partisan gerrymandering. Generally, gerrymandered maps have been struck down because they intentionally diluted the votes of a protected demographic, for example in Miller v. Johnson (1995), when the Supreme Court ruled against Georgia’s congressional redistricting plan because “race was the overriding and predominant force in the distracting determination” and it therefore violated the Equal Protection Clause of the Fourteenth Amendment.

Gill v. Whitford arises from the 2010 redistricting plan drawn by Wisconsin’s legislature: before this time, the state’s electoral maps had always been drawn by federal courts, rather than legislatures. The Republicans won a majority in both houses and had the support of the governor’s office to draw a map which allowed them to win “60 seats in the state’s 99-seat assembly” with a minority of the votes in the 2012 local election. It was challenged by a group of Wisconsinites who claimed this plan intentionally diluted the strength of the Wisconsin Democratic Party and violated their First and Fourteenth Amendment rights. In 2014 the Republican Party won a majority of the votes and further expanded their majority in the state’s assembly.

Precedent suggests that the Supreme Court will have to rule in favor of the Wisconsin Republican Party. In the case Vieth v. Jubelirer (2004), the Supreme Court held that there were no “judicially discernible and manageable standards” for adjudicating political gerrymandering claims. And since Wisconsin State legislature drew those contentious maps using all proper and traditional methods, the case falls for the same reasons Justice Scalia argued in Vieth: partisan gerrymander is not unconstitutional; the Constitution does not guarantee proportional representation. Scalia believed such partisan activity is protected and democratic values of equal representation do not provide the compelling state interest to justify courts to intervene.

The deciding factor in Vieth was that there are no judicially discernible standards by which to adjudicate claims of partisan gerrymandering. All standards proposed amount only to what Chief Justice Roberts calls “sociological gobbledygook.” If in the case currently under consideration, Gill v. Whitford, the Court decides that the Republican map constitutes an impermissible partisan gerrymander, it would set the stage for a number of suits from both Republican and Democratic parties in other states challenging electoral maps. More than one-third of state maps fail the tests applied by the district court in the Wisconsin case. The courts would then have a hand in deciding whether republicans or democrats win in state elections — the courts, the undemocratic branch of government, should play no such hand.

 

In Shaw v. Reno, Justice O’Connor argues that when members of any demographic live in the same neighborhoods and communities, “a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions.” The republicans who drew the map did not deviate from traditional redistricting principles, but they did attempt to maximize number of seats that they could win in the Wisconsin elections. There is no constitutional requirement for the majority party to make elections as competitive as possible — in fact, the only way that the Legislature could have given the Democratic Party their desired election results would have been through “heroic levels of nonpartisan statesmanship by abandoning [their] advantage” entirely.

 

Perhaps the way that the Democratic Party can win more elections is by putting forth more competent candidates, who resonate with voters who do not typically vote for democrats. Unlike race and religion, which are “immutable characteristics” of people, political affiliation is “never as permanently discernible” as a person’s race. But those who choose the winners of local elections are the people of particular districts; the winners of local elections, on the other hand, are chosen to represent the interests of that particular group of people. I believe, as Justice Scalia did, that the political party which puts forward a candidate who does not represent the interests of all her constituents will not win an election, even if the district favors her.

 

Gerrymandering has been part of the political process since before the Constitution was written, and has been used by every legislature for the formation of electoral districts. In fact, the Constitution even gives Congress the power to defend voters from discriminatory electoral maps—it does not give the courts that same power. In Gill v. Whitford, a Supreme Court verdict upholding the Wisconsin electoral map would be an important victory against judicial overreach and would give power back to the elected departments of government.

 

 

 

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[0] Miller v. Johnson, 515 U.S. 900 (1995)

[1] Howe, A., “The justices tackle partisan gerrymandering again: In Plain English (UPDATED)”, SCOTUSblog, Aug. 2017. URL=<http://www.scotusblog.com/2017/08/justices-tackle-partisan-gerrymandering-plain-english/>

[2] Vieth v. Jubelirer, 541 U.S. 267 (2004)

 

[3] ibid.

[4] Shaw v. Reno, 509 U.S. 630 (1993)

[5] Gill v. Whitford –jurisdictional statement

[6] Vieth v. Jubelirer

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