Supreme Court takes up first test in partisan gerrymandering claims

Mark Fischer  CC BY-SA 2.0

Im sure my Republican friends will find that an unfair characterization. "Where did one-person/one-vote come from?" But in most states, voters still prefer to elect legislators who draw the voting boundaries after each census.

Justice Anthony Kennedy, the likely swing vote, suggested he was open to putting limits on partisan gerrymandering, as the court heard arguments Tuesday on a Wisconsin map that has given Republicans a almost unbreakable hold on the state legislature.

The Wisconsin Democrats want to require districting plans to compensate for this clustering, presumably by drawing long tentacles that stretch from central cities through suburbs and to the countryside.

According to the efficiency gap, Minnesota's current maps have a one-seat Democratic advantage in congressional races and a slight Republican advantage in state House and Senate races, but not almost enough to fall into gerrymandering territory. First, up until now the Court has not been willing to say that partisan redistricting, even if it produces grotesquely undemocratic results, is unconstitutional.

In Gill v. Whitford, Democrats found a favorable three-judge district court, but a five-vote majority of the Supreme Court blocked the ruling from taking effect while the court considers the case. As a preliminary matter, the Court must determine whether the district court had the authority to hear a statewide challenge to Wisconsin's redistricting plan, as opposed to hearing the case district by district.

Consider what would happen if the courts were to adopt the following rule: Any map that maximizes partisan competitiveness in as many districts as possible - and maximizes partisan competitiveness as much as possible in all the remaining districts - would be presumed to be constitutional.

The big question is what Justice Kennedy will do.

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He wondered whether the plaintiffs' standing issue would be erased if the court considered the case "a First Amendment issue, not an equal protection issue".

Justices will probably rule in the Wisconsin case sometime next year. This week the justices will be presented with an opportunity to define and thereby limit gerrymandering, the practice of drawing election districts for partisan advantage.

"Republicans have worked for years to rig the system with partisan gerrymandering and restrictive voting laws created to keep African Americans, Latinos, and young people away on Election Day", Tom Perez, Democratic National Committee Chairman, told CNN.

Justice Stephen Breyer proposed a test that would include whether one party was in control of the process, whether each party would have a chance to control the legislative body if it got similar amounts of votes, whether there was a persistent unfairness, whether the map was an "extreme outlier" from other states and whether there was any neutral justification for the way the challenged map was drawn. The other side loses if it has less than 55 percent.”.

Judging by the number of people gathered outside the court building on Tuesday-many of whom arrived as early as 3:00am, sleeping bags in hand-these implications have not been lost on American voters, who polls indicate overwhelmingly support court action to end extreme partisan gerrymandering. Gerrymandering is the process of using census data to draw voting district lines, which is meant to ensure that shifts in the population are properly represented in the House of Representatives. The map included a district that looked like a salamander, hence creating the term gerrymander. Weve reached the point where if a state isnt using a nonpartisan commission, the system is either already rigged or is just waiting to be rigged. Conversely, Chief Justice John Roberts and Justice Samuel Alito asked questions suggesting that they hold the opposite view. But if you can remove yourself from the assumption that theres something sacrosanct about the status quo, you can begin to see more clearly.

University of Chicago professors developed the test, known as the "efficiency gap", to measure the "wasted votes" that result when members of one political party are "packed" into certain districts or spread across districts to dilute their vote.

Wisconsin Solicitor General Misha Tseytlin, the lawyer defending the Wisconsin maps and the GOP lawmakers who drew them, argued that the tools make things more convoluted by comparing actual maps to other possibilities. A federal appellate court ruling said a Republican-drawn map in Texas discriminated against minority voters, but the Supreme Court declined to force the state to redraw its districts before the upcoming 2018 elections.

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