March 22, 2018

Supreme Court takes up partisan redistricting case

07 October 2017, 09:59 | Christie Tate

Supreme Court Decision on Redistricting Hangs in the Hands of Justice Kennedy

For the first time, the Supreme Court seems receptive to putting limits on partisan gerrymanders

The court was divided then, and the key vote was Justice Anthony Kennedy, who sided with the argument that courts should not be part of those types of cases.

The U.S. Supreme Court is weighing the role political partisanship plays in drawing legislative district lines.

The legal scholars and voting-rights activists who brought the case, Gill v. Whitford, have asserted that Wisconsin's state senate and assembly district maps were rigged by Gov. Scott Walker's political allies to lock in the majorities they gained in the 2010 election. Other than establishing the test of "one man, one vote" to assure uniform district sizes in its 1962 Baker v. Carr ruling and some companion cases, the high court has been noticeably, and probably wisely, reluctant to enter what Justice Felix Frankfurter called "the political thicket" by choosing to referee highly partisan political disputes.

That algorithm produced alarming results in Wisconsin, a perennial 50-50 political battleground where Republican legislators drew almost two-thirds of state Assembly districts to favor their party. It's an outlier in another way, too: Research by the political scientist Jowei Chen suggests that the Wisconsin district map does much worse on traditional districting criteria than neutral maps do, despite the Wisconsin Constitution's requirement that districts be "in as compact form as practicable".

After every 10 years, both state and federal district boundaries are redrawn to ensure roughly the same amount of population in each district. Murphy conceded it would be.

There might well be a good argument for reining in partisan gerrymandering.

"Gerrymandering is distasteful", conservative Justice Samuel Alito said.

By contrast, Roberts raised the specter of having the courts draw legislative and congressional district lines every decade.

Justice Neil Gorsuch, the newest member of the court, likened the court's task in finding a way to measure partisanship with his preparations for grilling steak. "What's this court supposed to do, a pinch of this, a pinch of that?" "A pinch of this, a pinch of that?" he asked.

The chief justice expressed worry that the court's legitimacy and authority would be hurt if the court struck down what most observers agree is extreme partisan gerrymandering by Republicans in Wisconsin.

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It may seem gerrymandering can give a party control of the legislature, but what sort of results does that guarantee?

Critics say the district is drawn with the intention of dividing Republican strongholds to dilute their power, while connecting together far flung Democratic areas to create a safe seat in the U.S. House of Representatives.

A Supreme Court ruling in favor of the Wisconsin challengers could reshape American politics by requiring lawmakers to draw maps that are more fair and competitive. At this point, the Justices are faced only with the question of whether to go ahead and review the legality question and the separate but linked question of whether to wipe out the lower court decisions that gave rise to that review.

Rodd Freitag, a professor at UW-Eau Claire, said the high court's decision could have major implications for elections across the country.

Some liberal justices wondered what would happen to voters if partisan gerrymandering made election results preordained.

A majority of the justices appeared sympathetic to the idea that immigrants held long-term should be eligible for a hearing that would let them argue for their release. What becomes of the precious right to vote?

Perhaps, it seemed, he agreed with Paul Smith, the lawyer representing those challenging the Wisconsin maps, that only courts can stop legislators from drawing maps that guarantee one-party control of a state's legislature or delegation to Congress for years - perhaps decades - to come. Justices Ginsburg and Kagan grilled legal counsel for the employers on how they could prevail without "undermining and changing radically" the NLRA's protection of employee rights to act concertedly to improve the terms and conditions of their employment.

The problem, of course, is that heretofore there is no bright line establishing unconstitutional political gerrymandering.

"You are the only institution in the United States. that can solve this problem", Smith added.

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