Partisan Gerrymandering: A Consideration for State Legislatures, Not the Supreme Court

Partisan Gerrymandering: A Consideration for State Legislatures, Not the Supreme Court

Stephanie Renzelman, Staff Editor[1]

In a recent Supreme Court case, the bench has been asked to consider the longstanding custom of redistricting.[2] Gill v. Whitford, a case out of Wisconsin, is forcing the Supreme Court to address the constitutionality of partisan gerrymandering specifically,[3] a question the highest court in the United States has not pondered in over a decade.[4] The crucial deliberation will be over their role in a process that is traditionally a political decision left to a political branch: state legislatures.

In 2010, Republicans in Wisconsin won the majority in both the state assembly and the senate, and similarly went on to claim the governor’s office. [5] This gave Republicans control over maps redrawn following the census.[6] Their redistricting plan was highly scrutinized by Wisconsin Democrats after the 2012 election results demonstrated the effects of politically advantaged gerrymandering.[7] After being neglected this privilege for decades, Republicans took the opportunity to construct a map that would benefit their party for years to come,[8] a concept and strategy we have honored in American politics since the late 18th century.[9]

Maps are redrawn every ten years to reflect population and demographic shifts.[10] In doing so, elected officials have the option to manipulate district lines to protect or alter political power, also known as gerrymandering.[11] Most states give their legislatures full control of these processes from beginning to end.[12] They are responsible for drafting district lines, and are the final authority for accepting and implementing the newly drawn maps.[13]. Supporters believe it makes the most sense for legislatures to play such a significant role as they are the branch that is forced to confront constant partisan tradeoffs and are thus the most qualified to handle the job.[14] Supporters also argue politicians are likely to draw the least controversial district lines considering they are directly accountable to the public.[15] Critics on the other hand disagree with allowing self-interested legislators to draw lines of districts in which they run for office, and overemphasize the interests of the party in control.[16] Regardless of what side one might find themselves on, one aspect we should all agree on is that this is a political arena the Supreme Court should not attempt to referee.

The last time the Supreme Court considered the issue of partisan gerrymandering was in 2004 in the case Vieth v. Jubelirer.[17] The overall issue was whether the Supreme Court, rather than the states or Congress, is the appropriate institution to address partisan gerrymandering issues.[18] Here, the court got it right when their answer was “no.”[19] The court ruled that neither Article I, § 2, nor the Equal Protection Clause “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”[20] Justice Kennedy concurs stating court’s should be cautious when creating a standard to determine whether partisan interests in a redistricting process are excessive, and ultimately that the court should refrain from intervention.[21] Considering the political question doctrine helps us understand why Vieth was concluded this way, and why a similar ruling in Gill is justified.

The political question doctrine says that the Constitution either explicitly or implicitly assigns some constitutional questions to political branches of government, rather than leave them strictly up to the courts.[22] The constitutional text is not necessarily dispositive here, leaving the court to take another route in order to determine the applicability of the doctrine.[23] They must decide whether they may establish a “judicially discoverable and manageable standard” for resolving partisan gerrymandering claims.[24] Plaintiffs in Gill v. Whitford have proposed an efficiency gap standard, a standard based on “wasted votes” developed via social science based research.[25] The court would be required to articulate standards grounded in statistics-based predictions, and battles between political party experts and their respective data.[26] Subjective elements like these are inescapable in the discussion of partisan gerrymandering, and unacceptable criteria for a court to utilize to properly evaluate the law.[27] Each proposed standard thus far presents multiple uncertainties and ultimately highlights the impossibility of a “judicially discoverable and manageable standard” as this problem bestows breeding grounds for political bias.

Redistricting and gerrymandering are time-honored traditions in American politics. Since the development of these concepts, they have been managed and implemented by the states. Associate Justice Gorsuch posed an important question, what source grants the Supreme Court the authority to revise state redistricting maps?[28] He went on to emphasize caution about stepping in here,[29] an essential warning to the rest of the bench. Chief Justice John Roberts supports this notion by claiming that for the good of the Supreme Court’s reputation, they should stay out of it.[30] A win for the plaintiffs in Gill would flood the court with partisan gerrymandering cases.[31] Furthermore, a plaintiff win paints the Supreme Court as one with a Democrat preference.[32] Ruling in the plaintiff’s favor now takes democracy away from legislatures and has the potential to cause great harm to the status and integrity of the highest court.[33]

Overall, it is not the Supreme Court’s place to intervene in questions and processes traditionally subject to political branch control. Such an intervention would truly be an unwarranted disruption of separation of powers and democracy. Partisan issues to this degree have no place in the judiciary, the one branch expected to exert political neutrality. Justice Kennedy explained it best in Vieth, “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”[34]

[1] J.D. Expected May 2019.
[2] Amy Howe, Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?, SCOTUSblog (Oct. 3, 2017, 2:13 PM), http://www.scotusblog.com/2017/10/argument-analysis-cautious-optimism-challengers-wisconsin-redistricting-case/.
[3] Whitford v. Gill, 218 F.3d 837, 863 (W.D. Wis. 2016).
[4] Michael Li & Thomas Wolf, 5 Things to Know About the Wisconsin Partisan Gerrymandering Case, Brennan Center for Justice (June 19, 2017), https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case.
[5] Howe, supra note 2.
[6] Id.
[7] Id.
[8] Whitford, 218 F.3d at 853.
[9] Sam Levine, Supreme Court Set To Hear Redistricting Case That Could Remake American Politics, Huffington Post (Oct. 3, 2017, 12:42 AM), https://www.huffingtonpost.com/entry/supreme-court-gill-whitford-redistricting_us_59cd5290e4b0f18c4e3d1343.
[10] Aaron Blake, Redistricting, explained, Wash. Post (June 1, 2011), https://www.washingtonpost.com/politics/redistricting-explained/2011/05/27/AGWsFNGH_story.html?utm_term=.dbc4713050aa.
[11] 7 Things to Know About Redistricting, Brennan Center for Justice (July 3, 2017), https://www.brennancenter.org/analysis/7-things-know-about-redistricting-july-2017.
[12] Justin Levitt, A Citizen’s Guide to Redistricting, Brennan Center for Justice 2, 24 (2010) http://www.brennancenter.org/sites/default/files/legacy/CGR%20Reprint%20Single%20Page.pdf.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Michael C. Dorf, The Supreme Court Gives Partisan Gerrymandering the Green Light–or at Least a Yellow Light, FindLaw (May 12, 2004), http://supreme.findlaw.com/legal-commentary/the-supreme-court-gives-partisan-gerrymandering-the-green-light-or-at-least-a-yellow-light.html.
[18] Dorf, supra note 17.
[19] Id.
[20] Vieth v. Jubelirer, 541 U.S. 267, 305 (2004).
[21] Id. at 316.
[22] Id.
[23] Id.
[24] Id.; see also Baker v. Carr, 369 U.S. 186, 216 (1962).
[25] Harrison & Torchinsky, supra note 20.
[26] Howe, supra note 2.
[27] Levine, supra note 9.
[28] Howe, supra note 2.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Guy Harrison & Jason Torchinsky, The Democrats Take Their Political Problems to Court, National Review (Oct. 3, 2017, 4:00 AM), http://www.nationalreview.com/article/452162/supreme-court-wisconsin-redistricting-democrats-seek-political-advantage; Vieth, 541 U.S. at 306.