Justices hear arguments in Wisconsin redistricting
WASHINGTON — Helen Harris said she has always been an engaged voter who freely expressed concerns to lawmakers about everything from education to jobs.
“But something happened in 2011,” the retired Milwaukee school principal said. “Something changed and I felt my vote was no longer important,” adding that candidates stopped seeking her vote and her opinion.
That was the year the Wisconsin Legislature changed voting districts to intentionally give an advantage to Republican statehouse candidates by ensuring that Democratic voters were grouped in ways that diluted their power.
The change led Ms. Harris and eight other Wisconsin Democrats to file a lawsuit that was appealed all the way to the U.S. Supreme Court, where justices heard arguments Tuesday in Gill vs. Whitford.
The case could have farreaching implications for American democracy and public policy as justices consider how extreme gerrymandering has to be before it becomes unconstitutional.
It’s the first time the court has taken up a gerrymandering case since a Pennsylvania case, Vieth vs. Jubelirer, in 2004. At that time, a plurality of justices could not agree on a standard to determine when gerrymandering violates the Constitution by diluting voting power.
Lawyers for Ms. Harris and her co-plaintiffs say they have identified the kind of “workable standard” that Justice Anthony M. Kennedy said he was looking for in the 2004 case.
But Wisconsin Solicitor General Misha Tseytlin suggested that the plaintiffs want “a redistricting revolution” based on social science measures that amount to “hypothetical conjecture.”
The plaintiffs offered three measurements of the effect of Wisconsin’s redistricting, including one called the “efficiency gap” that essentially measures the number of “wasted votes” that are cast either for a losing candidate or for a winner who would have prevailed anyway.
Justice Stephen Breyer offered his own test of constitutionality. It would consider whether a single party controlled redistricting, whether the efficiency gap is significant and whether the effects are likely to continue for multiple election cycles.
But Chief Justice John Roberts said the suggested social science metrics would be hard to explain to average people, who might assume the high court made a partisan ruling anyway. Such an assumption, he said, could harm the integrity of the court.
And Justice Neil Gorsuch questioned why the plaintiffs’ briefs point to several different social science measurements rather than a single clear standard.
“What’s the test? What is this court supposed to do? A pinch of this and a pinch of that?” he asked.
The case was filed after Wisconsin Republicans won 49 percent of the statewide vote for statehouse candidates but 61 percent of the seats.
“There is no question this is maximizing one-party control as far as they could go,” argued attorney Paul M. Smith, who represents the plaintiffs.
Justice Samuel Alito said gerrymandering is “distasteful,” but that it might not be the right time for the Supreme Court to get involved. Plaintiffs disagreed. “This is the cusp of a more serious problem as gerrymandering becomes more sophisticated with computers and data analytics and an electorate that’s more polarizedand more predictable than it’s ever been before,” Mr. Smith argued. “If you let this go,in 2020 we’re going to have a festival of copycat gerrymandering the likes of which this courthasneverseen.”
He said plaintiffs are betting on the justices to reign in the practice.
“Politicians are never going to fix gerrymandering. They like gerrymandering,” Mr. Smith said. “You are the only institution in the United States that can solve this problem just as gerrymandering is about to get worse.”
The outcome could have repercussions for Pennsylvania, where Republicans won 13 out of 18 U.S. House seats last year but only about half the total ballots cast in congressional contests.
The League of Women voters already has a case teed up in Pennsylvania. It has filed a lawsuit claiming that Republicans’ “extreme” partisan gerrymandering entrenched their own representatives in office and diluted the voting power of Democrats.
Pennsylvania state Sen. Daylin Leach, D-Montgomery, was in the courtroom for the argument after standing in line for more than six hours for a seat. He said later that he was optimistic about a ruling that will curb gerrymandering, but he acknowledged the challenge before the court.
Mr. Leach, who is running for Congress, said voters that he’s talked to want assurances that their votes will count. He is seeking to represent the Seventh Congressional District, whose boundaries resemble a jagged and sideways letter H as they twist through five counties — most of Delaware County and parts of Berks, Montgomery, Chester and Lancaster counties.
However the court rules, he said, the decision will affect the boundaries of that district and many others nationwide. A ruling for Wisconsin would open the door to even more extreme gerrymandering while restraints would require states to draw districts that are more compact and contiguous.
“Either way, the lines will look different. It’s just whether they look more competitive or more like a stacked deck,” Mr. Leach said. “This is in some ways the most important cases that’s been heard in the last 100 years because it goes to the very foundation of our democracy.”
Justices did not indicate when a ruling might be issued.