Law & the Courts

Define ‘Gerrymander’ Precisely: The Supreme Court Tackles the Impossible

The U.S. Supreme Court in Washington, D.C. (Reuters photo: Joshua Roberts)
In seeking to combat partisanship, Wisconsin judges were enlisted in a partisan project.

Democrats know that they have a problem. As our country has become more politically polarized, we have increasingly sorted ourselves geographically. Democratic voters are far more likely to be found in dense and politically homogeneous urban areas. We see this after every election cycle in maps depicting outcomes by county: America as a sea of red with islands of deep blue. Given that we elect Congress and state legislatures in single-member, winner-take-all geographic districts, this concentration of Democratic votes gives Republicans a natural advantage in legislative races, even in the absence of any partisan bias in the drawing of those districts. After last fall’s elections, the GOP controlled 67 of the nation’s 98 partisan legislative chambers.

In the face of this natural handicap, the Left is doing what it always does when it can’t win elections. It is turning to the courts. The problem, according to Democrats, is that the Republicans have unfairly gerrymandered the districts. Over 30 years ago the Supreme Court acknowledged that drawing legislative districts to benefit the voters of one party might violate the Constitution. But a majority has been unable to agree on any neutral standard by which such a gerrymander might be identified. As a result, despite decades of litigation, lawsuits alleging partisan gerrymanders have failed. Indeed, a number of justices have concluded that the time had come to give up and admit that such claims cannot be evaluated without making political, as opposed to legal, judgments and should be regarded as non-justiciable.

But last year, in Gill v. Whitford, a divided three-judge panel sitting in Madison, Wis., decided that it had found the principle that has eluded the Supreme Court. It held that the Wisconsin legislature had unconstitutionally drawn assembly districts to benefit Republicans. Even though the court acknowledged that the concentration of Democratic voters could be expected to give Republicans a natural advantage, it concluded that the percentage of seats won by Republican candidates in 2012 and 2014 departed “too much” from the percentage of all votes in 99 separate assembly races for Republican candidates. Earlier this year, the United States Supreme Court granted full review of the case, which will be argued in October.

If accepted by the high court, the theory urged by the plaintiffs in Gill would represent a dramatic, judicially imposed change in our political system. The fancy name chosen by the plaintiffs for this new standard is “the efficiency gap.” Democratic votes were “inefficiently” distributed among Wisconsin’s assembly districts so that many were “wasted” in strongly Democratic districts. In other words, Democratic voters were more heavily concentrated in certain districts than Republicans. Of course, “packing” the opposition’s votes is a well-known form of gerrymandering. But simply to note that the voters of one party are more heavily concentrated than voters of the other does not tell us whether, or to what extent, it is the product of where voters live as opposed to partisan skullduggery.

In fact, the court in Gill conceded that Wisconsin Republicans had respected traditional redistricting principles. The maps were contiguous and compact. There were no bizarrely drawn districts resembling ink blots or coiled snakes. But because it was possible to draw maps that would probably lead to somewhat less disproportionate results, the district court concluded that the ones that Wisconsin chose were unconstitutional. And therein lies the problem. Because the efficiency gap treats “wasted” votes as a presumptive constitutional problem that must be explained away or remedied, it is, in the end, a requirement of some form of rough proportionality between the aggregate votes for the candidates of one party and the number of seats won by that party’s candidates. It is the absence of that proportionality that turns out to be the “inefficiency” that must be remedied.

But the Supreme Court has rejected any such constitutional mandate of “proportionality.” State legislatures have traditionally been elected from single-member, geographic districts. Partisans are not uniformly distributed throughout a state’s geography, and it is unlikely that the results of numerous individual elections will match statewide preferences. To be sure, the district court in Gill denied that it was requiring such proportionality, noting that there was also evidence that the Republicans had “intended” to benefit themselves. But, as the Supreme Court has noted, this will almost always be the case when a legislative majority draws a new district. Perhaps the natural tendency of politicians to help themselves to an electoral advantage should be checked, but there is no way around the fact that the panel majority chose to do so by imposing a constitutional obligation to, in effect, gerrymander for competitiveness and to compensate for the natural disadvantage imposed by the geographic concentration of Democrats.

There’s the irony. In seeking to combat partisanship, the district court — I’m sure, unwittingly — enlisted in a partisan project. Perhaps that’s not surprising. Redistricting involves the balancing of multiple factors — contiguity, compactness, continuity, community of interest, respect for political subdivisions — that often work against each other and make it difficult to define what “normal” districts ought to look like. In straining to decide how much partisanship is “too much,” courts inevitably plunge themselves into our political wars.

The Supreme Court should make clear that there is no constitutional mandate for electoral “efficiency” or proportionality of results. Indeed, it may be time for the Court to declare that, at least as long as traditional redistricting principles are respected, claims of political gerrymandering are non-justiciable. The Court has never been able to decide how to address such claims and, sometimes, the inability to find an answer means that you have been asking the wrong question.

READ MORE:

In Praise of Gerrymandering

Supreme Court Strikes Down Majority-Minority Districts for Being Majority-Minority

Courts Abuse Power, Ignore Law, Bend to Pressure, Since FDR

Rick Esenberg — Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law & Liberty. The views expressed here are his own.

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