The Latest Constitutional Test for Gerrymandering

By James Dail (CMC ’20)

On October 3rd, the Supreme Court heard oral arguments in the case Gill v. Whitford. At stake is whether Wisconsin state legislators acted unconstitutionally by apportioning legislative districts to favor Republicans, thus diluting the effectiveness of votes for Democrats. If the Court rules that the legislators did act unconstitutionally, the implications for the U.S. political system cannot be overstated: legislative district boundaries across the country would be completely redrawn, changing the balance of voters in each district. This will transform the makeup of both Congress and the state legislatures, and political compromises between Republicans and Democrats will be far more likely.

Gerrymandering is the process in which Congress redraws legislative house districts in order to be beneficial to the party currently in power. Suppose, for simplicity’s sake, that a state has 5,000 Republicans and 5,000 Democrats, and that five-congressional district need to be created. A Democratic majority on a state legislature could compose the districts so that four have 1,250 democrats and 750 republicans, while the fifth is composed solely of Republicans. Even though there are equal numbers of Democrats and Republicans in the district, the Democrats would have four seats in the House, while the Republicans would only have one.

This hypothetical example illustrates the underlying reality that the state legislatures have been apportioning legislative districts to tip the scales in their party’s favor. Even though partisan gerrymandering has been a common practice throughout U.S. history, it has grown into a pressing problem in recent years. Computers can analyze voter registration data and generate algorithms that allow districts to be redrawn with striking precision. This is problematic not only because gerrymandering limits the representation of the minority political party, but because excessive partisan gerrymandering leads to political polarization. If a Republican candidate is guaranteed to win against their Democratic opponent in a general election race, then their only challenge would be in the primary race. They would have no incentive to take a centric position on an issue in order to make him appear more favorable in a general election campaign. They would have every incentive to move their political positions as far to the right as they possibly could. This partisan extremism occurs on both sides of the aisle, and puts to death any hope of political compromise.

If the oral arguments give any indication, it appears that Justice Anthony Kennedy will likely have the deciding vote in the case. The originalist-minded Justices seemed universally opposed to coming up with a new method for the apportionment of legislative districts. Chief Justice John Roberts was concerned about the politicization of the Court, saying that “[politicization] is going to cause very serious harm to the status and the integrity of the decisions of this court in the eyes of the country.” The four liberal-minded Justices expressed concern that gerrymandering encourages some to not exercise their right to vote, with Justice Ginsburg saying that “if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?” When a similar case, Vieth v. Jubelirer, was brought before the Court in 2004, Justice Kennedy wrote in a concurring opinion that he could not support putting an end to gerrymandering without a surefire method to determine where abuse had occurred. The Supreme Court has previously struck down gerrymandering cases on the basis that they discriminated against race and surprised minority representation, such as in the recently decided Cooper v. Harris. However, the Supreme Court has never declared that gerrymandering on the basis of political partisanship could be discriminatory.

The is good reason to believe that Gill v. Whitford will turn out differently than Vieth v. Jubelirer. Whereas then there was no clear way to determine if a legislature had acted unconstitutionally, the excesses of state legislatures have only grown worse since then, and new remedies, such as bipartisan redistricting commissions, have been proposed. With this in mind, the Supreme Court is likely to rely on the precedent set forth in Cooper v. Harris and rule that partisan gerrymandering is similarly exclusionary.

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