An End To Gerrymandering?

Antonin Scalia once wrote that "Political gerrymanders are not new to the American scene" and noted there were allegations that Patrick Henry attempted, unsuccessfully, to gerrymander James Madison out of the First Congress. With today's technologies, though, Patrick Henry would have absoluetely been successful and Bernie Sanders, Chuck Schumer, Ruth Bader Ginsburg, Norman Coleman, Carole King, Andrew Dice Clay, Chris Rock and I might have gone to a high school named for Calvin Coolidge (who was president when the school opened).

In recent times, conservatives on the Supreme Court have been pretty much OK with gerrymandering. The recent North Carolina case was so egregiously and obviously racist, though, that two of them voted with the liberals and struck down North Carolina's indefensible congressional map. Monday, Ariane de Vogue, CNN's Supreme Court correspondent, reported that the Court may be about to change directions and rein in the excesses Republicans-- and some Democrats-- have gone to in recent years to drawn patently ridiculous districts that are strictly about politicians' careers and not at all about the people who live in them.

"A state may not use race as the predominant factor in drawing district lines, unless it has a compelling reason," wrote Elena Kagan for the majority in the North Carolina decision. "The ruling," wrote de Vogue, "was a victory for Democrats and civil rights groups who had challenged the North Carolina maps arguing that they unnecessarily packed African-Americans into two districts. This made it easier for African-Americans to re-elect incumbents to those two seats, but diluted their votes in surrounding areas.

But it's the next step the Supreme Court takes that could really change the game. Here's why:"

The Supreme Court has a standard limiting overreliance on race in map-drawing except under the most limited circumstances. But it has never been successful in developing a test concerning a much thornier issue: partisan gerrymandering.

"The court has said that too much partisanship is illegal," said Justin Levitt, a professor of law at Loyola Law School. "But it hasn't yet decided how much is too much."

But that could soon change, and Justice Anthony Kennedy's vote-- as it is on so many other issues-- could be key.

"For most Americans, it's obvious that our elected officials shouldn't be able to punish voters based on what party they prefer," said Levitt. "A Supreme Court decision setting limits on drawing districts for partisan advantage would substantially change the way that local, state, and congressional districts are drawn after the next census."

In most states, the maps are drawn after all by the party in power after each census, meaning neither party has a guarantee of controlling the districts indefinitely. But given U.S. House districts generally survive for 10 years-- or five elections-- the impact on policy and government is substantial.

Levitt and others believe that the legislators in charge of drawing the maps have gone to new extremes impacting voters' right to fair representation under the First and Fourteenth Amendment.

In the coming days and weeks, the court will deal with two separate cases about partisan gerrymanders. The issue deeply divided them back in 2004 in a case called Vieth v. Jubelirer.

The conservatives on the court felt that the issue should be handled by the political branches. But Kennedy at the time was unwilling to bar all future claims of injury from partisan gerrymanders.

The court recognizes, for instance, that the map-drawing process is political, and that there will always be a certain amount of partisan politics involved. After all, it is politicians drawing political lines.

..."The justices have struggled to figure out where to draw the line between acceptable partisan influence and an excessive influence that burdens the right to vote," said Danielle Lang of the Campaign Legal Center.

"Essentially, the court has not yet settled on a rule to determine the 'how much is too much' question," she said.

Lang's group is behind one of the cases making its way to the court. She represents Wisconsin Democratic voters who are challenging district maps. Democrats claim that the maps discriminated against Democratic voters by diminishing the strength of their votes.

Last fall, a divided three-judge panel in Wisconsin held that the redistricting plan "was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats."

The court accepted the plaintiffs' standard based in part on the new work of political scientists who used voting data to calculate the amount of bias against one party or another in the maps.

The formula is called the Efficiency Gap.

"We proposed a standard that uses political science quantitative measures-- a new standard that has never been presented to the courts before," said Lang. "The court endorsed the use of those measures as evidence of the harmful effects of partisan gerrymandering."

Wisconsin state Attorney General Brad Schimel blasted the ruling and the standard. "Our maps are lawful and constitutional under any standard," he said in a statement.

Justices are also looking at another challenge to the North Carolina map that alleges an illegal partisan gerrymander.

A lower court denied a partisan gerrymander claim, but left the door open to future claims if plaintiffs did propose a standard. Supreme Court justices discussed the pending case behind closed doors last week.

Marc E. Elias, who served as the general counsel for Hillary Clinton's 2016 presidential campaign, is the lead lawyer in the case.

"Having been told last week that they can't engage in illegal racial gerrymandering, Republican legislators may now face a case in which they can't illegally use partisanship," Elias said in an interview.

"This will hopefully, finally, lead to truly fair redistricting throughout the country," he said.

We asked Wisconsin state Senator Chris Larson what's been going on in his state with the partisan GOP gerrymandering. He told us that "In Wisconsin, Republicans have followed the national trend of using all their ill begotten power to seize more power for themselves. Everyone knows they famously went after working class unions and teachers to diminish their political strength. Few, however, may know that on the very day of the first round of recall elections against state senators, Governor Scott Walker signed into law the gerrymandered maps that locked their legislative power into place. These maps are so bad they were drawn behind closed doors of a private law firm where senators had to sign secrecy oaths just to see them. Staffers even physically damaged the hard drives to try and prevent the public from seeing what they were up to in drawing these maps. What they drew has allowed Republican control of Wisconsin's legislative branch despite elections where more voters voted for Democratic candidates across the state. Thankfully, a federal lawsuit, Whitford v Gill, was launched to challenge the extreme gerrymander that violated the constitutional rights of Wisconsin citizens. Whitford won a trial court verdict to overturn the maps and the case is heading to the U.S. Supreme Court. If the justices uphold this decision, it won't just lead to Wisconsin having fair maps and a more level playing field, it will break one of the biggest tools Republicans have used to suppress the will of voters across America."

Writing for the Washington Post a little of 3 years ago, Chris Ingraham noted that "Democrats won in nine of the 10 most-gerrymandered districts. But eight out of 10 of those districts were drawn by Republicans. This speaks to the notion that the point of gerrymandering isn't to draw yourself a safe seat but to put your opponents in safe seats by cramming all of their supporters into a small number of districts. This lets you spread your own supporters over a larger number of districts. And the way to do this is to draw outlandishly-shaped districts that bring far-flung geographic areas together. North Carolina's 12th district, which holds the title of the nation's most-gerrymandered, is a textbook example of this: It snakes from north of Greensboro, to Winston-Salem, and then all the way down to Charlotte, spanning most of the state in the process. North Carolina Republicans really outdid themselves in 2012. In addition to the 12th district, there's the 4th, which covers Raleigh and Burlington and snakes a narrow tentacle all the way south to pick up parts of Fayetteville. And then there's the 1st District, which covers a sprawling arbitrarily shaped region in the northeastern part of the state. All three of these seats were won by Democrats in 2012. Overall, the North Carolina GOP's efforts paid off handsomely. Based on their statewide vote share you'd expect North Carolina Democrats to hold about seven seats. But they won only four. This is because an outsized share of the state's Democratic voters were shunted off into the three highly-gerrymandered districts above."

He claimed at the time that the two worst states for gerrymandering were North Carolina (R) and Maryland (D). "Republicans," he wrote, "drew Congressional boundaries in six of the 10 most-gerrymandered states. In addition to North Carolina, Republicans drew district boundaries in Louisiana, Virginia, Pennsylvania, Ohio and Alabama. Democrats drew districts in West Virginia and Illinois, in addition to Maryland... Again, the payoff for Republicans is in the makeup of the state's delegations: In those six states, Republicans picked up about 11 more seats than you'd expect from simply looking at the parties' vote shares."

He pointed to PA-07, the gerrymandering of which we just covered a week ago, as an example of a district that needs to be redrawn rationally. Look at that ridiculous map drawn to protect Patrick Meehan.


UPDATE: When Politicians Pick Their Voters

This morning, the NY Times ran an editorial about the dreadful situation in North Carolina, urging the Supreme Court to overturn overly partisan gerrymandering, as well as racist gerrymandering. "With a partisan gerrymandering case likely to hit the court’s docket next term," wrote the editors, "the justices should finally set clear limits on the practice. The need for those limits is growing only more urgent as voter data and computer-mapping technologies become more sophisticated, and politicians become more brazen in their efforts to protect their power."

During the last three election cycles, the study found, Michigan, Pennsylvania and North Carolina have consistently had the most extreme bias, accounting for seven to 10 extra Republican seats among them. In North Carolina, Republicans hold 10 of 13 congressional seats, even though the statewide vote is roughly split. In Pennsylvania, which Donald Trump won by less than one percentage point, the Republican advantage is 13 to 5.

These three states, along with Ohio, Texas, Virginia and Florida, all share one feature: one-party control of the redistricting process. The study found that this was the most likely culprit behind the bias, for two reasons.

First, there was significantly less bias in states that entrusted mapmaking to the courts or to independent commissions, or that gave Democrats and Republicans shared control over the process. Second, the researchers found little to no effect from neutral factors known to skew seat distribution-- like the tendency of Democratic voters to live closer together in cities, thus wasting more votes than Republicans, who tend to be spread over a wider area. In the states with the worst partisan bias, voters are distributed fairly evenly.

The bottom line is that politicians can’t be trusted to draw maps that fairly represent their constituents, and they won’t willingly give up the power once they have it. So it’s up to the courts to step in and set clear rules.

At least three justices believe otherwise. In a strongly worded dissent from last week’s ruling, Justice Samuel Alito Jr., joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy, argued that the right place to resolve partisan gerrymandering disputes was in the political arena. Otherwise, Justice Alito said, the courts will “be transformed into weapons of political warfare,” inviting “the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.”

But that’s precisely the problem. How are “the losers” supposed to fight on a battlefield that the winners have systematically tilted against them?