New York Times
Supremes to Hear Wisconsin Partisan Apportionment Case
October 3. 2017
by Adam Liptak
WASHINGTON — The Supreme Court is set to hear arguments on Tuesday in a case that could reshape American democracy. The justices will consider whether extreme partisan gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution.
The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party wins an outsize number of seats. The court has, however, left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.
The problem, Justice Anthony M. Kennedy wrote in a 2004 concurrence, is that no one has devised “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.
The case, Gill v. Whitford, No. 16-1161, started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time in more than 40 years. It was a redistricting year, and lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.
Democratic voters sued, saying the maps violated the Constitution.
The case is part of a larger debate over politics in redistricting, one that has taken on new urgency with the advent of sophisticated software. Both parties have engaged in partisan gerrymandering, but these days, Republicans have an advantage following a wave of victories in state legislatures that allowed lawmakers to draw election maps favoring their party.
Some critics, like Arnold Schwarzenegger, a Republican and the former governor of California, say districts should be drawn by independent commissions rather than politicians. Prominent Democrats, including former President Barack Obama and his attorney general, Eric H. Holder Jr., are pushing to undo the redistricting gains Republicans made after the 2010 census when the next census is taken three years from now.
Last year, a divided three-judge Federal District Court panel ruled that Republicans in Wisconsin had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.
Wisconsin officials say that the lopsided representation of Republicans in the State Legislature is a product of geography rather than gerrymandering. Democrats have packed themselves into cities, effectively diluting their voting power, while Republicans are more evenly distributed across most states, the brief said.
Judge Ripple acknowledged that the distribution of the population explains at least some part of the gap.
“Wisconsin’s political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process,” he wrote.
But he added that partisan gerrymandering amplified that advantage.