While much of the country remains focused on the recent devastation brought on Puerto Rico and Las Vegas, the nation’s political class (also known as the “swamp” in the Donald Trump era) was likely tuned to the U.S. Supreme Court this morning where justices pondered a ruling that could eventually wreak havoc on Congress and state legislatures across the country. The question? Whether there is a point at which manipulation of voting districts for the purpose of favoring one political party over another goes so far that it denies constitutional rights of voters, and if so, whether the courts can then reasonably intervene to correct that problem.
The gerrymandering case at hand, Gill v. Whitford, involves a 2011 redistricting of Wisconsin’s legislature that cemented Republican control in that state and was subsequently struck down by a federal court last year. But the case might also be seen as an extension of a 2004 decision in Vieth v. Jubelirer in which the Supreme Court nearly did the same in Pennsylvania but in a 5-4 vote ultimately chose not to intervene in that state’s redistricting. The court’s judgment appeared to turn on Justice Anthony Kennedy who voted with the conservative majority but left open the possibility of taking action in the future if a workable standard for court intervention could be proposed.
Now that moment may have arrived. At the heart of the issue is whether the common techniques of “cracking and packing” — diluting an opposing party’s clout by either spreading its supporters out to prevent a majority on the district level (cracking) or concentrating them in fewer districts (packing) — has a discriminatory effect. Courts have had no trouble stepping in when gerrymandering is done for the purpose of reducing the clout of minorities. Partisan gerrymandering is not necessarily much different, given how African-American voters, for example, are far more likely to register as Democrats than as Republicans.
During oral arguments, Justice Kennedy asked questions that suggested he was still open to the idea of court intervention. The question is how to set an objective standard. In the Wisconsin case, the lower court offered some possible tests to decide when the judiciary needs to intervene: Did the redistricting demonstrate an intent to discriminate against a rival party? Does it have a discriminatory effect? Was there a “legitimate justification” for the map? How to measure these effects would not necessarily have to be spelled out for all time. Like many areas of law, it would be worked out case by case as courts passed judgment on disputed redistricting efforts — assuming some general framework is endorsed by a court majority.
Having the Supreme Court right this particular wrong makes sense given that most legislative bodies have shown themselves incapable of addressing gerrymandering — largely because the political establishment has become so accustomed to (and enriched by) the practice. Maryland offers numerous examples. The Democratically-controlled General Assembly has long been careful to reduce the clout of Republicans whenever possible. Our congressional delegation was split 4-4 just 16 years ago but is now 7-1 with the lone Republican, Rep. Andy Harris, a product of some serious 1st District packing. Indeed, the Supreme Court is set to hear more on Maryland’s gerrymandering tendencies. A legal challenge to the lines drawn around the 6th Congressional District — which stretches from selected portions of liberal Montgomery County to far more conservative Western Maryland (which was effectively cracked) — is expected to be heard later this term.
Still, we sympathize with Chief Justice John G. Roberts Jr. who said Tuesday that he worries that striking down voting districts in a manner that benefits one party over another will invite criticism of the judiciary’s “status and integrity.” Yet surely doing nothing in the face of such an unfair (or as Justice Samuel Alito termed it, “distasteful”) practice raises the same speculation of political motives. Upholding Wisconsin, for example, will benefit Republicans who continue to hold a comfortable majority in the state legislature even though Democratic candidates receive nearly half the votes.
And if not the court, who? In states like Maryland, politicians make excuses for inaction by demanding a national solution. But Congress will never act since the House majority at any given time will almost certainly owe its status to gerrymandered districts. This political problem doesn’t have a political answer, as lawmakers are only too happy to warp the system in their favor as long as they can get away with it.
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