Jus­tices take on po­lit­i­cal power lines

Supreme Court agrees to hear a Wisconsin case to weigh whether ger­ry­man­der­ing has gone too far.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — The Supreme Court agreed Mon­day to de­cide whether par­ti­san ger­ry­man­der­ing — in which vot­ing dis­tricts are drawn to fa­vor one party — is a time-hon­ored Amer­i­can po­lit­i­cal tra­di­tion or has evolved into an un­con­sti­tu­tional rig­ging of elec­tions.

The Wisconsin case of Gill vs. Whit­ford, to be heard in the fall, could yield one of the most im­por­tant rul­ings on po­lit­i­cal power in decades.

Ger­ry­man­der­ing has been de­rided for gen­er­a­tions, often mocked in car­toons de­pict­ing bizarreshaped dis­tricts that look like sala­man­ders or spi­ders.

But in re­cent decades, be­cause of soft­ware pro­grams, ger­ry­man­dered maps look less ob­vi­ous and are more ef­fec­tive in giv­ing one party an in­sur­mount­able ad­van­tage. The maps can all but en­sure that the party in power at the be­gin­ning of a decade — when dis­tricts are drawn — will keep con­trol of a state leg­is­la­ture and win most of a state’s seats in the U.S. House of Rep­re­sen­ta­tives.

Democrats main­tain that the Repub­li­can Party has used its con­trol of elec­toral maps af­ter the 2010 cen­sus to give Repub­li­cans an un­fair grip on power in Congress.

For ex­am­ple, Pennsylvania, Ohio and Michi­gan are closely di­vided states in terms of party af­fil­i­a­tion and all voted for for­mer Pres­i­dent Obama. Yet 34 of their 48 House rep­re­sen­ta­tives are Repub­li­can largely be­cause of ger­ry­man­der­ing.

North Carolina’s elec­toral map was re­jected by the Supreme Court re­cently for il­le­gally us­ing race in an ef­fort to cre­ate more GOPlean­ing dis­tricts. It sends 10 Repub­li­cans and three Democrats to the House, even though statewide races often re­flect a pop­u­la­tion that is nar­rowly di­vided.

Democrats have played

the same game, al­though they now con­trol far fewer states. In Mary­land, Democrats drew a map that al­lowed their party to con­trol seven of the eight seats in the House.

What is un­clear is whether the jus­tices see this as pol­i­tics as usual. The Supreme Court has viewed po­lit­i­cal ger­ry­man­der­ing as dis­taste­ful but not il­le­gal. The jus­tices have never struck down a state’s elec­toral map be­cause it was un­fairly par­ti­san, though they have out­lawed ger­ry­man­der­ing along racial lines.

Vot­ing rights ad­vo­cates are hope­ful that it will be dif­fer­ent this time. They say party lead­ers have gone too far in rig­ging the sys­tem in their fa­vor.

Paul Smith, a lawyer for the Cam­paign Le­gal Cen­ter, said ger­ry­man­der­ing “is worse now than any time in re­cent mem­ory.” He rep­re­sents a dozen Demo­cratic vot­ers who sued Wisconsin over its elec­toral map for the state Assem­bly.

The map makes it likely the GOP will win a su­per­ma­jor­ity in the Assem­bly even when more votes are cast statewide for Democrats than for Repub­li­cans.

In 2012, 51% of Wisconsin vot­ers cast bal­lots for Democrats in the state leg­isla­tive races, com­pared with 48.6% for Repub­li­cans. But Repub­li­cans still won 60 of the 99 seats in the Assem­bly.

Last year, a three-judge fed­eral panel agreed with the chal­lengers and ruled 2 to 1 that the Wisconsin map was un­con­sti­tu­tional. The map’s “mo­ti­vat­ing fac­tor” was an “in­tent to en­trench a po­lit­i­cal party in power,” said Judge Ken­neth Rip­ple, a Rea­gan ap­pointee to the U.S. 7th Cir­cuit Court of Ap­peals in Chicago. The judges cited the work of Uni­ver­sity of Chicago law pro­fes­sor Ni­cholas Stephanopou­los, who de­vised a math­e­mat­i­cal for­mula that showed the Wisconsin plan was an ex­treme ger­ry­man­der.

Trevor Pot­ter, pres­i­dent of the Cam­paign Le­gal Cen­ter and for­mer Repub­li­can chair­man of the Fed­eral Elec­tion Com­mis­sion, urged the high court to af­firm that de­ci­sion. “The threat of par­ti­san ger­ry­man­der­ing isn’t a Demo­cratic or Repub­li­can is­sue. It’s an is­sue for all Amer­i­can vot­ers,” he said. “We’re con­fi­dent that when the jus­tices see how per­va­sive and dam­ag­ing this prac­tice has be­come, the Supreme Court will adopt a clear le­gal stan­dard that will en­sure our democ­racy func­tions as it should.”

The Repub­li­can Na­tional Com­mit­tee does not share his as­sess­ment of the prob­lem or the so­lu­tion. Its lawyers urged the Supreme Court to take up the Wisconsin case and up­hold the state’s map. They ar­gued that their party’s ad­van­tage re­flects the “re­al­ity of po­lit­i­cal ge­og­ra­phy.”

They say Demo­cratic vot­ers are con­cen­trated in the cities, giv­ing the GOP a big edge else­where. “The Con­sti­tu­tion con­tains no right to pro­por­tional rep­re­sen­ta­tion in leg­isla­tive bod­ies based on statewide to­tals,” they ar­gued.

Wisconsin’s at­tor­ney gen­eral di­rectly ap­pealed to the Supreme Court. The state’s lawyers said the dis­tricts were com­pact and neatly drawn. They said the Democrats are at a dis­ad­van­tage be­cause their vot­ers are con­cen­trated in Mil­wau­kee and Madi­son.

They urged the court to over­turn the lower-court rul­ing and throw out the claim on the grounds that re­dis­trict­ing is a po­lit­i­cal process, not a le­gal one. They also won a pro­ce­dural rul­ing on Mon­day that could be a good omen for the GOP.

Shortly af­ter an­nounc­ing the court would hear the case, the jus­tices is­sued an or­der that put on hold the lower court’s de­ci­sion that re­quired Wisconsin law­mak­ers im­me­di­ately re­draw the map for its leg­isla­tive dis­tricts. The or­der came on a 5-4 vote. The four Demo­cratic ap­pointees — Jus­tices Ruth Bader Gins­burg, Stephen G. Breyer, So­nia So­tomayor and Elena Ka­gan — dis­sented.

That means the court’s five Repub­li­can ap­pointees voted with Wisconsin’s Repub­li­can lead­ers. The five jus­tices ap­par­ently agreed with the state’s ar­gu­ment that it should not be forced to re­draw the map un­til the high court fi­nally rules on its con­sti­tu­tion­al­ity. But the or­der also sug­gests they are skep­ti­cal of the lower court’s rul­ing.

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