Map-making fight doesn’t belong in court
On Tuesday, the U.S. Supreme Court will hear arguments tempting it to plunge into an impenetrable political thicket. It will consider a lower court’s ruling that requires the judiciary to determine whether and when partisanship in drawing electoral districts — something as old as the Constitution — is unconstitutional. And courts will wrestle with cases deciding how much partisanship is too much.
The practice recently has become hotly disputed, in part because Republicans control 66 of 98 partisan state legislative chambers, and both the legislatures and governorships of 26 states. And it is partly because some members of the political science professoriate are inventing metrics that supposedly provide objective standards for identifying excessive partisanship.
For several decades, federal courts produced redistricting plans for Wisconsin after decennial censuses because the legislature could not agree on any. In 2010, however, Republicans won control of both houses of the legislature and the governorship and produced a redistricting plan. In 2012, they won 60 of the 99 state assembly seats with 48.6 percent of the statewide vote, and in 2014 they won 63 seats with 52 percent of the vote. However, under the court- devised plan in the previous decade, in five elections the Republicans won an average of 55.2 seats with an average of 49.1 percent of the statewide vote. This is partly because under requirements of the Voting Rights Act, Milwaukee’s “majority- minority” districts were protected. And it is partly because Democratic voters generally are inefficiently distributed, concentrated in cities and college towns.
The 12 plaintiffs against the Republican plan have three problems, each fatal. First, they are contesting the entire statewide plan rather than their individual districts. So, they are asking the court to change its traditional standards for “standing” to sue, which require persons to demonstrate a “particularized injury” — in this case, that the configurations of their individual districts devalue their votes. The lead plaintiff is a retired professor whose assembly district in Madison has voted Democratic by an average of 67.2 percent in the last five elections. His supposed injury is that the statewide plan diminishes his chances of enjoying a Democratic majority in the assembly.
Second, until 31 years ago, the court held that the redistricting methods are a “political question” properly consigned to the political ( elected) branches, not the courts. In 1986, the court said a political gerrymander could conceivably be considered in court, but it has never discovered what Justice Anthony Kennedy terms “a manageable standard.”
Third, the plaintiffs want the court to plunge the judiciary into unending litigation involving dueling professors who will cherrypick concocted metrics to serve as standards. Tuesday’s arguments will illustrate why Wisconsin warns about a “social- science hodgepodge.” Plaintiffs will argue that an “efficiency gap” (the difference between all the loser’s votes and the surplus of votes in excess of those the winner needed for victory divided by the total number of votes cast) that exceeds 7 percent — a figure plucked from the ether — is presumptively unconstitutional.
Using partisan social science, the plaintiffs are asking the court to find in the constitution a hitherto unnoticed requirement for proportional representation. Justice Felix Frankfurter perhaps anticipated this.
When in 1962 the court first intervened in states’ redistricting practices, it propounded only the simple and neutral principle of “one person, one vote” — districts must be numerically equal. Nevertheless, Frankfurter dissented, having warned in 1946 against even entering “this political thicket.” He worried that someday the court might be drawn ever-deeper into the fraught business of finetuning political processes. Unless the court is careful, that someday could arrive Tuesday.