USA TODAY International Edition
Supreme Court forced to rule on ‘ unsavory’ district lines
New standard could result in ‘ massive impact’ for voters
WASHINGTON A Supreme Court that prides itself on trying to remain above politics will be forced to rule soon on what one justice calls the “always unsavory” process of drawing election districts for partisan gain.
A case headed its way from Wisconsin, along with others from Maryland and North Carolina, will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?
Should the court set a standard — something it has declined to do for decades — it could jeopardize about one- third of the maps drawn for Congress and state legislatures. That could lead to new district lines before or after the 2020 Census, which in turn could affect election results and legislative agendas.
“If the court makes a broad, sweeping decision … this could have a massive impact on how maps are drawn,” says Jason Torchinsky, a lawyer for the Republican National Committee. “It will make more districts more competitive.”
The issue is reaching the high court at a time when both Republicans and Democrats have improved the art of drawing congressional and legislative maps to entrench themselves in office for a decade at a time. Computer software increasingly helps them create safe districts for their most conservative and liberal candidates, whose success invariably leads to more partisan gridlock in government.
Last week, the justices struck down congressional district lines drawn by North Carolina’s Republican- controlled legislature because they used voters’ racial composition to maximize political advantage. The court has ruled similarly on Virginia and Alabama racial redistricting plans.
Now, however, the Wisconsin case will confront the high court with raw politics, not race. The state is one of several battlegrounds where Republicans and Democrats fought to a virtual draw in last year’s presidential election, but where Republicans enjoy election districts that have given them a nearly 2- to- 1 advantage in the state Assembly.
The situation is similar in Florida, Michigan, North Carolina, Ohio, Pennsylvania and Virginia, where lines drawn by Republicans have given the GOP the lion’s share of the seats in Congress and state legislatures. North Carolina’s congressional delegation tilts 10- 3 Republican. Michigan’s state Senate has 27 Republicans, 11 Democrats. In Virginia, where President Trump lost handily, Republicans have 66 of 100 seats in the House of Delegates.
Democrats do likewise where they control the line- drawing process, such as in Illinois, Maryland and Massachusetts. But they have all the levers of power in just six states; Republicans control 25 states, with 197 of the 435 seats in the House of Representatives.
As a result, congressional lines have become ever more partisan in recent years. In 2012, Republicans won 53% of the vote but 72% of the House seats in states where they drew the lines. Democrats won 56% of the vote but 71% of the seats where they controlled the process.
A recent report by the Brennan Center for Justice at New York University School of Law estimated that Republicans’ artistic finesse is responsible for at least 16 House seats — two- thirds of the 24 Democrats need to regain the majority. MORE VOTES, FEWER SEATS Against that backdrop, a federal district court in Wisconsin held a full trial and ruled 2- 1 in November that election districts drawn by Republicans discriminated against Democratic voters “by impeding their ability to translate their votes into legislative seats.” It demanded that the legislature draw new district lines by this November.
On Tuesday, the state asked the Supreme Court to block that requirement on the assumption that the justices will accept the case next month for oral argument in the fall or winter. Most election law experts already count four votes on each side of the issue, based on past decisions by conservative and liberal justices. Justice Anthony Kennedy, who at 80 may be mulling retirement, could be the key vote.
In three landmark cases from 1962, 1986 and 2004, the high court has retained a role for itself to review partisan gerrymandering but has never defined how much is too much. In the last case, four justices sought to curtail that role by declaring it a political question outside their jurisdiction, but Kennedy would not go that far.
“A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” he wrote, but added: “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”
Two years ago, the court ruled that states can try to remove partisan politics from the process by creating commissions to take the job away from legislators. Kennedy joined in that narrow ruling by Justice Ruth Bader Ginsburg, who noted in her opinion that Kennedy had labeled partisan gerrymanders “incompatible with democratic principles.”
Even justices who favor giving lawmakers discretion to draw district lines hold their noses when it comes to how they do it.
“Partisan gerrymandering is always unsavory,” Justice Samuel Alito wrote in a dissent from Monday’s ruling against North Carolina’s use of race. But “while some might find it distasteful, our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering.”
The Wisconsin case will force the justices to decide whether maps that helped Republicans capture 60 of 99 seats in the state Assembly while winning less than 49% of the statewide vote pass that test. Paul Smith, the lead attorney for those challenging the maps, thinks not.
“Republicans ... wield legislative power unearned by their actual appeal to Wisconsin’s voters,” he argued in court papers. On a national scale, he said in an interview, “the House of Representatives would not be controlled by Republicans were it not for gerrymandering.” COUNTING ‘ WASTED’ VOTES What’s different this time from past Supreme Court clashes is the existence of data- driven models to measure election results against other factors. One such standard — dubbed the “efficiency gap” — counts the number of “wasted” votes for winning candidates in districts purposely packed with the opposition party’s voters, as well as for losing candidates in districts where those voters were purposely scattered.
Using the standard he helped to develop, Nicholas Stephanopoulos, a University of Chicago assistant law professor, said eight of the 10 most gerrymandered state maps for Congress and four of the five for state legislatures were drawn since 2010.
Republicans and others who defend the Wisconsin maps say Democrats are at a disadvantage largely because they cluster in cities. That makes it more likely they will be dominant in some districts but scattered in many others. Demanding that district lines be drawn so that the political makeup of legislatures and Congress closely match statewide vote totals, they say, also ignores the advantages of incumbency and the quality of candidates and lawmakers.
“They’re setting up an election we don’t hold,” Rick Esenberg, president of the Wisconsin Institute for Law & Liberty, said in reference to calls for proportional representation. “There’s no there there.”
“If the court makes a broad, sweeping decision … It will make more districts more competitive.” Jason Torchinsky, Republican National Committee