Gerrymandering case before Supreme Court affects Texas
On Monday, the Supreme Court agreed to hear Gill v. Whitford, a case involving a challenge to Wisconsin’s Republican-drawn legislative maps. The challengers claim that these maps put Democratic legislators at an unfair disadvantage by preventing them from gaining seats in the Legislature despite their popularity among voters.
At the heart of the case is a constitutional challenge to partisan gerrymandering, the practice of drawing legislative districts based on the partisanship of constituents. Regardless of whether these challengers are successful, the court’s decision will have important consequences for Texas’s political future.
In 2004, the Supreme Court heard the case of Vieth v. Jubelirer — another challenge to partisan gerrymandering. In Vieth, a conservative plurality of the Supreme Court determined that federal courts had no business getting involved in claims of partisan gerrymandering. Such claims involved a “political question” with no clear standards for courts to apply. The political process, not the Judiciary, was the appropriate forum for addressing complaints about partisan gerrymandering. The four liberal justices vehemently dissented.
Importantly, the crucial swing vote in Vieth, Justice Anthony Kennedy, declined to join the conservative plurality in declaring partisan gerrymandering a political question. Instead, he voted with the conservative bloc because he disliked the particular theories in front of the court, seemingly encouraging a new challenge based on a different theory capable of providing clearer principles for courts to apply. Thirteen years later, the Wisconsin challengers believe they have the theory Kennedy was seeking.
They argue that partisan gerrymandering can be cabined by taking stock of the number of wasted votes in an election. The basic insight of their theory is that lines can be drawn in a way that causes one party to “waste” more votes than the other, resulting in a systematic advantage unrelated to popularity among voters. More importantly, they claim to be able to mathematically measure and determine the propriety of differences in wasted vote numbers. While the details of the challenger’s theory are important for legal experts, the implications of either a successful or unsuccessful challenge are more important for Texans to understand.
If this challenge succeeds, and partisan gerrymandering is declared unconstitutional, Texans can expect two primary changes: First, the composition of the Legislature will change. A direct result of a successful challenge to Wisconsin’s current maps will be newly drawn maps that mitigate the “unfair” Republican advantage, placing more Democrats in its Legislature. The same challenge would be brought against Texas maps, likely resulting in a similar influx of Democratic legislators.
Second, Texas will struggle to defend against racial gerrymandering claims. Texas lawmakers have been dragged into court several times over the past few years to defend claims that their legislative maps discriminate against minority voters. However, because race and partisanship overlap to a significant extent in Texas, their inevitable response is, “We are discriminating on the permissible basis of partisanship.” Success by the Wisconsin challengers would eliminate this defense, leaving Texas maps vulnerable to both partisan and racial gerrymandering challenges.
If the Wisconsin challenge fails, partisan gerrymandering could be used less suspiciously to rebut claims of unconstitutional racial gerrymandering. With a fresh word on the topic by the Supreme Court, Texas could double down on its partisan gerrymandering defense. Allowing Texas legislators to claim this defense with added security might also result in more acute partisan gerrymandering over time. New, sophisticated gerrymandering technology and data could allow Republican lawmakers to draw lines that last longer and are more anticompetitive, permitting them to further entrench and extend their hold on legislative majorities.
However, if the court decides the case, Texans should be aware of the implications its decision has for our Legislature. The rules for drawing legislative districts determine who represents us and — more importantly, what kinds of legislation our representatives pass. We can be sure that our legislators will respond directly to the court’s decision. Texans should be watching this response.
Re: June 16 article, “Kelley Lawyer Did Not Act On Rumors.”
The headline for the story on the Greg Kelley case belies the reporting contained within the story itself: That all legal experts interviewed — including, remarkably, Greg Kelley’s current attorney — believe that the decision of trial counsel Cummings was entirely understandable.
Putting a carbon tax on CO2 emissions which could create two nice outcomes for Texans:
Property taxes for schools could be reduced, fixing the overtaxation of properties that is driving folks out of their homes, especially in high-tax communities within Austin.
Increased revenue from the CO2 tax could provide enough money for the voucher program for schools that agree to meet the same testing requirements as public schools.