One of the most interesting cases decided this year by the US Supreme Court was Gill v. Whitford. The case concerned redistricting and gerrymandering. It was a unanimous decision by the court (9 to 0). In the opinion of most analysts, the Supreme Court wasted a historic opportunity to correct a wrong that cannot otherwise be solved by a political process. The wrong in question is entrenchment in power by a ruling party.
In 2011, the Wisconsin Legislature passed a redistricting plan that resulted in Republicans winning a greater percentage of State Assembly seats that the percentage of overall popular vote in the state for Republicans. Despite Democrats winning a majority of the statewide Assembly vote in 2012 and 2014, Republicans won sixty of the ninety-nine Assembly seats. Plaintiffs (Wisconsin Democrats) complained of this partisan gerrymandering. They alleged it was done by “packing” – concentrating many Democrats in certain districts, so that Democratic candidates won those districts by huge margins and by “cracking” – dispersing Democrats into several districts in order to dilute their voting strength.
The underlying legal question was whether Constitution prohibits a State from engaging in extreme partisan gerrymandering when drawing its legislative districts. Gerrymandering and partisan politics has been a fixture of American politics since at least 1812, since Governor Elbridge Gerry gave his name to the process of partisan map drawing in Massachusetts. Since that time, courts have been repeatedly asked to get involved and have been consistently reluctant to change the redistricting process.
This year again, Judges were asked to decide the question of when there is ‘too much politics’ and to develop a standard for “efficiency gap” which would measure ‘wasted votes’ (votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win). Because the efficiency gap is ultimately based on comparing the number of seats in a legislature with the number of statewide votes that different parties get, it is essentially a call for proportional representation in the entire State.
A district court invalidated this Wisconsin redistricting map, finding that the map displayed both bad intent and bad effect, because redistricting was intended to place a severe impediment on the votes of Wisconsin Democrats and had actually done so, based on final results.
The Supreme Court, in an opinion written by Chief Justice Roberts, reversed the district court’s decision. The Court held that Plaintiffs (Wisconsin Democratic voters) failed to demonstrate Article III (equal protection claim) standing, because they have not shown any specific individual injury to their right to vote. As in prior cases involving racial gerrymandering, in partisan gerrymandering claims plaintiffs can seek a remedy only as to their own district and cannot seek to redraw an entire state’s districting map. Interests in the composition of the legislature or in the policies that the legislature may adopt do not confer standing, because these interests are abstract and shared with the public generally.
Ultimately, the Court remains reluctant to usurp a basic legislative function. Theoretically, if voters do not like what legislators do (gerrymandered districts) they can vote them out of power. Federal Judges, on the other hand, cannot be voted out of power. Practically speaking, unfortunately, gerrymandering entrenches a ruling party in power, and voting it out through regular elections becomes an even more distant possibility.