Bonuchi Law

SCOTUS To (Maybe) Decide Whether Political Gerrymandering Is Constitutional

(Posted: June 20, 2017)

Now a break from case updates for some big national news. Yesterday, in Gill v. Whitford, the Supreme Court agreed to hear the State of Wisconsin's appeal from a federal district court's decision holding the electoral maps for the state legislature were unconstitutionally partisan. My gut likes this decision (what sense does it make to have legislators drawing their own districts after all?), but my head questions whether it’s a wise use of judicial power. And as we'll see, therein lies pretty much the entire controversy.

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Amy Howe at Scotusblog does a great job of explaining the battle lines.

A few quick points about the dispute.

As Wisconsin’s briefing is quick to point out, the district court’s finding broke new(ish) ground. It was the first court in over thirty years to find a legislative district unconstitutional because it was drawn for partisan reasons. And it set down a test for unconstitutional partisanship in redistricting based on notions developed in Davis v. Bandemer, 478 U.S. 109 (1986), which everyone seems to agree is no longer good law. As told by Wisconsin in its brief seeking Supreme Court review:

“The district court defined its test as follows: a redistricting scheme is an unconstitutional partisan gerrymander if it (1) intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation; (2) had that effect; and (3) cannot be justified on other, legitimate legislative grounds.”

The district court concluded that the Republican majority in Wisconsin had drawn its maps for partisan reasons, which was evidenced by election results showing large percentages of wasted Democratic votes and a double-digit pro-Republican bias (the difference between a party’s share of votes received and the share of seats it won).

Wait, so how does gerrymandering work again? Without getting into the weeds too much (the district court’s ruling ran 150-plus pages), redistricting can have hyper-partisan outcomes in (at least) a couple ways: First, a party in the majority can pack in as much of the minority party’s electorate as possible into just a few districts, thereby allowing the majority party an advantage in all the remaining districts and safeguarding its majority party status. Or the majority party can spread the minority party’s voters thin over a large number of districts, ensuring that most of legislative districts are made up mostly of the majority’s electorate.

But before the Supreme Court weighs in on the district court’s new test and its conclusion, it must first determine whether the issue is justiciable at all. Wisconsin says no of course and it maintains that almost by definition these questions are political in nature and outside the power of our federal courts to decide. Indeed, it contends, a plurality of the Supreme Court reached that precise conclusion the last time the Court took on this question in Vieth v. Jubelirer, 541 U.S. 189 (2004) (also the case that damned Davis v. Bandemer). There is also a standing argument, but since all the action is on the political question doctrine for now, I’ll leave that for another time.

What will the Court do? Some observers, Howe among them, note that when it took the case, the Court also stayed the district court’s directive to Wisconsin to start drawing new maps. If you’re reading the tea leaves, Howe explains, this doesn’t bode well for the district court’s ruling given that to order the stay, a majority of the justices had find that Wisconsin is likely to succeed on the merits of its appeal. With argument likely in November or December, we’ll find out sometime next year.

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