Will Gerrymandering As A Problem Plaguing American Democracy Disappear On Tuesday?

When I first saw North Carolina state Senator Jeff Jackson's tweets (above), ny eye was drawn to the graphic. Maybe because of the hues or the simplicity of the forms, it rang some Fernand Léger bells in my mind. Turned out, though, that Jeff was talking about gerrymandering, not art criticism. As the editors of the NY Times pointed out on Friday, the Supreme Court could solve the gerrymandering mess on Tuesday. Yes, this Tuesday! They can go a long way towards de-regging the political system... but will they? "Politicians," they wrote, "keep themselves, and their party, in power by redrawing the geographical boundaries for legislative seats in the states and in Congress."

They can be very open about doing this. In North Carolina, where the statewide vote is often close, a Republican lawmaker was asked why the G.O.P.-led Legislature drew district maps that gave Republicans 10 congressional districts and Democrats only three. He responded, “Because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

All map drawing is political, but at its most extreme, it strikes at the heart of representative democracy. By letting politicians pick their voters rather than the other way around, this practice, known as partisan gerrymandering, corrodes the relationship between lawmakers and their constituents. It also discourages bipartisanship and undermines the public’s trust in government.

The Supreme Court has repeatedly steered clear of solving this age-old problem. But on Tuesday, in a case that could transform the American political landscape, the justices will hear arguments over whether, and how, partisan gerrymandering can be reined in.

Why is this so hard? Almost no one defends the practice. James Garfield, who served in Congress before becoming president and had benefited from gerrymandering, called it “evil.” President Ronald Reagan called it a “national scandal” in 1987-- “anti-democratic” and “un-American.” John Kasich, the Republican governor of Ohio, said last year that it remains the “biggest problem we have.” Polls show that seven in 10 Americans oppose it

Yet even though the Supreme Court has said a political gerrymander may be so extreme that it violates the Constitution, it has never struck one down because the justices have not been able to agree on how much partisanship in map drawing is too much, or even how to measure it.

If any case could convince them that it’s time to step in and find a solution fast, it’s the one they’re hearing on Tuesday: Gill v. Whitford, a lawsuit out of Wisconsin that offers a stark lesson in just how distorted the map-drawing process has become in an era of sophisticated mapping technology and intense political polarization.

In 2010, Republicans won unified control of Wisconsin’s government for the first time in years. They were determined not to lose it anytime soon, so they turned the decennial redistricting process, which began in 2011, into a clandestine partisan operation. They set up a “map room” at a Republican-allied law firm, used refined data analyses to draw new, Republican-friendly district lines, and invited only Republican lawmakers to come in and see their new districts-- after they signed nondisclosure agreements.

It worked. In 2012, the first election using the new maps, Republican candidates won 48 percent of the vote, but 60 of the state’s 99 legislative seats. The Democrats’ 51 percent that year translated into only 39 seats, yet two years later, when the Republicans won the same share of the vote, they ended up with 63 seats-- a 24-seat differential. In other words, Republicans had figured out how to draw maps to lock in their legislative majority no matter how many, or few, votes they received.

This is the opposite of how democracy is supposed to work, as a Federal District Court in Wisconsin found in striking down the maps last year under both the First and 14th Amendments. It was beyond doubt, the court held, that the new maps were “designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”

The court rejected the lawmakers’ claim that the discrepancy between vote share and legislative seats was due simply to political geography: Democratic voters, they said, are concentrated in urban areas, so their votes have an impact on fewer races, while Republicans are spread out across the state. In fact, that doesn’t explain why the Wisconsin maps are so skewed. Rather, political science experts point to two predictors of a successful partisan gerrymander: state legislatures under one-party control and a recent history of close elections. Wisconsin has both.

So do several other battleground states, where extremely biased legislative maps could be at risk if the court rules against Wisconsin, according to an analysis by the Brennan Center for Justice. The analysis also found that 16 or 17 Republican seats in the House of Representatives-- two-thirds of the 24 seats that Democrats would need to retake control of that chamber-- are a result of extreme partisan bias in the drawing of district lines.

In recent years, Republicans have benefited far more from extreme gerrymanders, because of political trends and accidents of timing, but both parties are guilty of skewing maps when they’re able to. So how can the court get past its ambivalence and strike down clearly unfair maps?

There are several straightforward ways to measure the degree of partisanship. The plaintiffs have pointed to one in particular, called the “efficiency gap,” which looks at the difference between each party’s “wasted” votes. That means every vote cast for its losing candidates, and all votes for its winning candidates above the bare majority needed to prevail. The greater the difference, the higher the partisan bias in the maps.

Measures like this could appeal to Justice Anthony Kennedy, who said in a 2004 case that he was open to the possibility of a standard that would allow the court to rule on partisan gerrymanders. Justice Kennedy, as usual, holds the key vote on the issue, since the four more liberal justices are probably prepared to strike down Wisconsin’s maps, while the four conservative justices are likely to say the court shouldn’t get involved in the political process. But extreme gerrymandering is a problem that by definition can’t be fixed through the normal political process, since the whole point is to make it hard or impossible for certain voters to make their voices heard. That’s not government of the people; it’s government in spite of the people.

The better, although not perfect, solution is to take map drawing away from self-interested politicians and put it in the hands of an independent or bipartisan commission, as more than a dozen states have done, helping to make races both more competitive and less partisan.

Until that happens everywhere, the court must step in and stop the most egregious gerrymanders. If it refuses to, the problem will only get worse.

Randy Bryce seemed concerned about what would go down Tuesday for his state. "When a political party's ideas (GOP) are so horrible that they need to gerrymander districts," he said, "it really says a lot. Thousands of voters in Wisconsin voted more for Democrats than Republicans but more Republicans gained seats. That's just wrong. It's time the voters choose their representatives-- not the other way around." With the Court hopelessly split between far right partisan corporate goons-- John Roberts, Clarence Thomas, Sammy Alito and Neil Gorsuch-- and normal justices-- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan-- Anthony Kennedy will be the likely tie-breaker.

When lawyers for the voters challenging Wisconsin's maps filed their main Supreme Court brief last month, they quoted Kennedy 41 times, beginning with their opening paragraph: Partisan maps "penalize citizens" because of their "association with a political party, or their expression of political views," he said in 2004.

They have reason to be hopeful. In the past, Kennedy has lamented political polarization and gridlock-- conditions made worse by the election of hard-right and hard-left partisans who disdain comity and compromise.

Two years ago, he cast the deciding vote in letting voters take Arizona's redistricting process away from the legislature and assign it to an independent commission, such as the one Kennedy's home state of California already had.

Cornell Law School professor Michael Dorf, a former Kennedy law clerk, says the justice isn't shy about courts weighing in on political matters.

"He is pulled to the idea that challenges to the machinery of democracy ... should be justiciable," Dorf says. And Kennedy most likely sees partisan gerrymandering as "a kind of cheating. It think it offends his sense of fair play."

On the other hand, the 81-year-old justice lamented in 2013 that the courts should not have to decide major issues best left to the political branches.

"A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” he said.

The question of unelected judges making political decisions has confounded the court for decades. In a 1946 opinion on whether political districts should be roughly equal in population, Justice Felix Frankfurter said courts "ought not to enter this political thicket" and instead should rely on Congress or state legislatures to fix what's broken.

Only in the 1960s did Chief Justice Earl Warren write the final chapter in that debate, ruling that state legislative districts as well as those for Congress must achieve the principle of one person, one vote.

But the question in gerrymandering cases is different: It's not about the vote itself but its relative weight in picking winners and losers. Challengers in Wisconsin contend that when Democrats are packed into the districts their candidates win and sprinkled into a greater number of districts their candidates lose, the system is rigged against them.

A federal district court ruled 2-1 last year that those districts 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 for use next year, but the Supreme Court-- with Kennedy's approval-- blocked that requirement by a 5-4 vote.

Arguing for Wisconsin Tuesday will be Solicitor General Misha Tseytlin-- another of Kennedy's former law clerks. His brief — which quotes Kennedy 33 times-- refers to gerrymandering as a "centuries-old status quo" and warns that any ruling against it would have to rely on one or more of the mathematical formulas devised by opponents. The result, he says, would be that in many states, "any displeased voter ... can file a lawsuit in federal court."

Daniel Epps, an associate professor at Washington University School of Law and another of Kennedy's former law clerks, says his former boss's search for the right balance between voting rights and judicial restraint was on display in the 2004 case.

“You can sort of see him struggling with it," Epps says. "And now is going to be the time when he has to come up with an answer.”

State Senator Chris Larson is the most effective progressive leader in the Wisconsin legislature. He told me early today that "After seizing power in 2010, Republicans in Wisconsin have used every effort to rig the political system against voters. Gerrymandering tilted the entire playing field their way and over time they have become less and less fearful of being held accountable for their actions against students, the environment, and working families. Just this month they passed a wildly unpopular $3 billion corporate giveaway to FoxConn, the largest public act of corporate welfare in American history. Shortly after, they passed the state budget which was over 2 months late, still falls short of even modestly funding K-12 education, and is yet the highest spending bill in state history (lots of corporate giveaways to fund). The US Supreme Court has a chance to restore integrity to elections by correcting the perpetual injustice inflicted by rigged maps. Setting clear guildlines is easy and it will ensure the will of voters is reflected every election instead of just the will of those elected every 10 years who then draw themselves into isolation."

Pennsylvania's most progressive state Senator, Daylin Leach, is busy running for the Democratic nomination for one of the most gerrymandered seats in America, PA-07. But not too busy to be ready to line up at 4am on Tuesday to get into the Supreme Court session for the oral arguments. He's a member of the Supreme Court Bar and they have a separate line, but it's still a line. Daylin was a prominent part of one of the amicus briefs and he's live-blogging the whole experience. Yesterday he told me that "Gill vs Whitford may be our last chance for a long time to make our elections meaningful. Gerrymandering is an obscene and poorly disguised theft of our vote. The vast majority of us are shoved into districts specifically to guarantee that our votes will never matter. This leads to few competitive elections and incumbent legislators who have no political incentive to accomplish anything. It is destroying our democracy and impeding any effort to actually solve problems. Lets hope that 5 justices care enough about what the founders envisioned to preserve it."