Could the Supreme Court Put an End to Gerrymandering?

Posted October 17, 2017 By Nathan Green In Elections, Politics, Public Affairs

During its Fall 2017 term, the Supreme Court is considering the Wisconsin gerrymandering case that could impact Congressional redistricting nationwide.

Gill v. Whitford concerns Wisconsin State Assembly’s redistricting map drawn in 2010 after Republicans took control of both houses in the state’s legislature. During redistricting, parties in power typically draw districts more favorable to their respective party. By packing opposition voters into as few districts as possible and then diluting the number of opposition voters in the other districts, mapmakers leverage advantages over their political opponents.

Some argue the practice has deteriorated to the point that voters’ constitutional rights are being violated, and the one-person, one-vote principal is under attack – in violation of the Constitution’s Equal Protection Clause.

In 2010, Wisconsin Republican lawmakers used voting and computer models to determine to redraw districts in favor of GOP candidates. During the 2012 election, Democrats cast more than 51% of votes in the state, and former Democratic President Barack Obama carried the state in the Electoral College. Republicans took 60 of the 99 state legislative seats that same year and the Republican majority has continued to grow through subsequent elections.

Historically, courts have ruled that partisanship in drawing the maps for state legislative and congressional seats is the prerogative of the voters, and part of the political process.

The Wisconsin voters who brought the case challenged the plan under the First and Fourteenth Amendments of the U.S. Constitution and, in late 2016, won at trial — the first time in over three decades that a map has been struck down as a partisan gerrymander.

If the court rules the gerrymandered Wisconsin election map violates the Constitution, it could result in legal challenges to the way some congressional districts have been drawn. Legislatures in at least 28 states draw districts – including Arkansas.

Officials on both sides of the aisle have called for an end to gerrymandering. Sen. John McCain, R-Ariz., and U.S. Sen. Sheldon Whitehouse, D-R.I. released a joint statement hoping for decisive action by the Court.

At the end of oral arguments, it appeared Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch would conclude that federal courts cannot resolve challenges based on partisan gerrymandering and Justices Ginsburg, Breyer, Sotomayor and Kagan would. Like many cases that pass through the Supreme Court, Justice Kennedy will likely cast the deciding vote.