Prominent Republicans urge Supreme Court to end gerrymandering practices
WASHINGTON — Breaking ranks with many of their fellow Republicans, a group of prominent politicians filed briefs Tuesday urging the Supreme Court to rule that extreme political gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution.
The briefs were signed by Republicans including Sen. John Mccain of Arizona; Gov. John R. Kasich of Ohio; Bob Dole, the former Republican Senate leader from Kansas and the party’s 1996 presidential nominee; former senators John C. Danforth of Missouri, Richard G. Lugar of Indiana and Alan K. Simpson of Wyoming; and Arnold Schwarzenegger, a former governor of California.
“Partisan gerrymandering has become a tool for powerful interests to distort the democratic process,” reads a brief filed by Mccain and Sen. Sheldon Whitehouse, D-R.I.
The Supreme Court will hear arguments in the case, Gill v. Whitford, No. 16-1161, on Oct. 3.
The Republican National Committee, the National Republican Congressional Committee and the Republican State Leadership Committee all filed briefs on the other side. They urged the Supreme Court to reject a challenge to state Assembly districts in Wisconsin that, by some measures, gave Republicans outsize political power unjustified by the overall vote.
Charles Fried, a Harvard law professor who served as U.S. solicitor general under President Ronald Reagan, and who is among the lawyers representing Republican politicians urging the Supreme Court to reject extreme political gerrymanders, said it was important to take the long view and to act on principle.
“It’s not a partisan issue,” he said. “We are working for our republic, and not for Republicans.”
Partisan gerrymandering is almost as old as the nation, and both parties have used it. But in recent years, as Republicans captured state legislatures around the country, they have been the primary beneficiaries. Aided by sophisticated software, they have drawn oddly shaped voting districts to favor their party’s candidates.
In the 1980s, when Democrats had more political power in state legislatures, they were enthusiastic proponents of partisan gerrymandering, Simpson, the former Wyoming senator, said.
“The Democrats laid the groundwork and set the template, and then Republicans figured they better get cracking, too,” he said.
The two parties’ legal arguments have flipped as their power shifted, Fried said.
“The same arguments, exactly, were made on the other side when Democrats were doing this to Republicans,” he said. “This is a prime example that people don’t mean anything that they say, that all arguments are opportunistic.”
These days, both parties are using their power more aggressively than ever, according to a brief filed by 65 current and former state legislators, 26 of them Republicans.
“In recent years, the two major political parties, leveraging the technologies of the modern age, have intentionally and systematically excluded each other from state legislatures like never before,” the brief said. “Democrats rigged the maps in Illinois, Maryland and Rhode Island, while Republicans did so in Wisconsin, Michigan, Ohio, Pennsylvania and North Carolina.”
The Supreme Court, which has never struck down an election map as a political gerrymander, will consider a case challenging the voting districts for Wisconsin’s State Assembly drawn after Republicans gained complete of state government for the first time in more than 40 years.
Republican lawmakers drew maps that helped their party convert close statewide vote totals into lopsided legislative majorities. In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats.
The phenomenon is commonplace, Schwarzenegger said.
“It’s a rigged system,” he said. “You have situations where you get 50 percent of the vote but only 35 percent of the seats. That is corrupt. That is incorrect. It’s unfair to the people.”
The plaintiffs challenging Wisconsin’s map are represented by the Campaign Legal Center. Its president, Trevor Potter, a former chairman of the Federal Election Commission, said he was “pleased, but not surprised, to see many of America’s most accomplished Republican leaders urging the Supreme Court to rein in excessive partisan gerrymandering.”
“They know that elected officials’ legitimacy comes from being freely chosen by voters, not through seizing power from voters to keep themselves in control,” added Potter, who was appointed to the commission in 1991 by President George Bush.
The challengers say they have identified a mathematical formula to help identify unconstitutional partisan gerrymanders. In a brief urging the Supreme Court to sustain Wisconsin’s maps, the Republican National Committee wrote that the formula was “a tool that advances the partisan interests of the Democratic Party.”
In California and a few other states, independent commissions rather than politicians draw election districts, rather than politicians. That bolsters public confidence, Schwarzenegger said.
“You see a direct correlation,” he said. “In California, for instance, we did the redistricting reform and the legislators have over 50 percent approval rating, and in Washington they have a 16 percent approval rating.”
Rep. Brian Fitzpatrick, R-PA., joined a brief filed by current and former members of the House of Representatives urging the Supreme Court to reject the Wisconsin maps. He said partisan gerrymandering had contributed to toxic polarization in the House of Representatives.
“You have 435 districts in the nation, and there’s probably only 20 or so that are legitimate swing districts,” he said. “For the 415 safe seats, their main election is in the primary, not the general. When the main election is in the primary, you legislate accordingly. The result has been a growing cavernous divide, which has created a Hatfield v. Mccoy environment in the legislature, and it’s hurting the American people.”
A brief on the other side from the Republican State Leadership Committee, which represents elected state officials, disputed that analysis, saying there was polarization even when candidates were elected statewide.
“Politics in the United States are polarized and have been for decades for a variety of reasons, and it is highly unlikely that partisan redistricting contributes to this polarization,” the brief said. “If it did, one would expect the U.S. Senate to be less polarized than the House of Representatives, and that is manifestly not the case.”
The brief from current and former House members noted that Reagan had referred to gerrymandering in 1987 as “a national scandal” and called for “an end to the anti-democratic and un-american practice of gerrymandering congressional districts.”
Simpson said it was time for the Supreme Court to heed that call.
“This case is long overdue,” he said. “Quite literally, gerrymandering is killing our system. Most Americans think politicians are corrupt, and when they’re rigging maps to pick their own constituents, they’re giving them reason to believe it.”