Pittsburgh Post-Gazette

Justices hear arguments in Wisconsin redistrict­ing

- By Tracie Mauriello

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.

 ?? Tom Brenner/The New York Times ?? Demonstrat­ors gather outside the U.S. Supreme Court building Tuesday as justices hear arguments in a key gerrymande­ring case out of Wisconsin. Lawyers for the state urged justices to reject a challenge to a redistrict­ing map drawn by a...
Tom Brenner/The New York Times Demonstrat­ors gather outside the U.S. Supreme Court building Tuesday as justices hear arguments in a key gerrymande­ring case out of Wisconsin. Lawyers for the state urged justices to reject a challenge to a redistrict­ing map drawn by a...

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