On the Front Porch with Brent Orrell and Tony Pipa: A conversation with Kevin R. Kosar


On the Front Porch with Brent Orrell and Tony Pipa: A conversation with Kevin R. Kosar


Supreme Court set to scrutinize partisan gerrymandering—and why it matters

The building of the U.S. Supreme Court is seen after it granted parts of the Trump administration's emergency request to put his travel ban into effect immediately while the legal battle continues, in Washington

Though overshadowed by the first publicly-available opinions from Associate Justice Neil Gorsuch, this session of the Supreme Court could prove pivotal for voter representation and the composition of Congress for decades to come.

The Supreme Court’s decision to hear Gill v. Whitford, in a hearing that will likely take place this fall, will address again the standards by which partisan redistricting can be challenged. Gill matters for the country: states’ redistricting following the 2020 Census could welcome new independence—and potentially fix in stone partisan electoral maps for a generation.

Meanwhile, a new bill introduced in the House by Democrats last month, though unlikely to pass, attempts to circumvent partisanship in redistricting altogether with a new model. Both have struck a nerve: Gill in particular ignites fresh debate as to the nature of equal representation in coming electoral cycles.

A mixed judicial history on gerrymandering

The court’s track record has been mixed, and thus far relatively unclear, on the standards to which it can rule in assessing states’ political gerrymandering.

The court ruled in 1986’s Davis v. Bandemer that although partisan gerrymandering was addressable by the court under the Fourteenth Amendment’s “equal protection clause” and under the First Amendment’s right to political expression, it limited the bases upon which entities could challenge district apportionment.

Gerrymandering was indeed unconstitutional, but a degree of harm needed to be proven. Reversing the district court’s decision, the court asserted redistricting could be deemed unconstitutional if claimants had proven “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” This distinction of “intentional” and “actual” discrimination would prove hard to validate—claimants would need to prove successive elections failed to allow “one person, one vote” with intent. One justice even challenged whether the Supreme Court and other federal courts should be able to address these political questions altogether.

The standard for partisan gerrymandering remained difficult to define. In 2003, a conservative-leaning court in Vieth v. Jubelirer claimed the court could not decide on these matters, citing “no judicially discernible and manageable standards for adjudicating such claims exist.” It invalidated the Davis standard, and without a hard measure of what partisanship and fair political representation could entail, it further muddled and limited the role of the court in these matters.

Why Gill matters

A Cooper v Harris decision this year deemed certain North Carolina redistricting plans unconstitutional on the grounds of racial gerrymandering. Now the court’s upcoming Gill v. Whitford hearing might establish new a standard for partisan gerrymandering.

In Gill, Wisconsin appealed a federal court’s 2016 decision invalidating the state’s post-2010 redistricting map. In the first federal ruling striking down a map for partisan gerrymandering in more than 30 years, the panel deemed Wisconsin’s Republican-led legislature’s 2011 map as unconstitutional on First and Fourteenth Amendment bases.

In arguing Gill in the Supreme Court, the plaintiffs’ novel approach might answer the question of partisan “standards” once and for all. The nonprofit Campaign Legal Center (CLC) has challenged Wisconsin’s redistricting map by applying a numerical standard, testing the applicability of a mathematical device called the “efficiency gap.” developed by two University of Chicago scholars. The efficiency gap applies a measure of “wasted votes”—votes wasted if cast for a losing candidate or a winning candidate beyond those needed to win the election. Across the nearly thirty years of voting measurement, the scholars’ analysis found “the severity of today’s gerrymandering is…unprecedented in modern times.”

Higher courts have thus far affirmed the challenges to Wisconsin’s map. If the Supreme Court rules for the “efficiency gap” proponents, it will have finally set a hard and testable legal standard in “wasted votes” against which future apportionments might be challenged.

Given the degree of population shifts in rust belt states, the 2020 census could stand to redefine districts and, more critically, the electoral map and parties’ calculus. If the courts define a standard for these challenges, partisan groups across the political spectrum could challenge redistricting maps, leading to a flood of legal activity using that new standard. If the courts rule there is no reasonable standard for challenge, there may be no possible route for future challenges, cementing redistricting maps state as legislatures define them.

Combating fatalistic voter behavior

Alongside new legal challenges that have raised awareness of gerrymandering, some members of Congress have identified an opening for a new approach.

In June, Rep. Don Beyer (D-Va.)—a longtime proponent of independent redistricting—introduced the Fair Representation Act alongside Democratic colleagues. The Act proposes a shift to larger multimember, “proportionally representative” districts for states with six or more representatives and recommends funding for a new model for rank ordering.

The current “winner-take-all” model creates Congressional districts that advocates like Third Way and FairVote claim has created deeper ideological division and served to systematically sow voter underrepresentation, often and likely in violation of Section 2 of the Voting Rights Act. The zero-sum system has produced electoral outcomes like that of 2012, where Democrats in aggregate received roughly 1.5 million more votes than Republicans, yet Republicans retained a more than 30-seat majority in the House—an outcome advocates claimed was the result of “packing and wasting” of votes through gerrymandering.

In Western Europe, rank ordering has been proven a “more accurate” voting system for races with more than two candidates. In focusing on district magnitude and ballot structure, proponents argue rank ordering would negate additional complex, and costly, runoff elections—and more critically help promote electoral processes that are “less negative,” more civil and more likely to foster compromise.

For equitable vote advocates, the lack of middle ground has exposed how unsustainable winner-take-all has become, and made clear the need for fundamental change. States like Massachusetts are only represented by Democrats in Congress, while several Midwest states only send Republicans to the House. Both fail to represent their significant voter identification with both parties, leading to reduced trust among the represented. Beyer and his colleagues believe a “fairer” voting process can rebuild this common ground.

That Democrats are the sole sponsors of this bill underscores how fundamental legislation of this kind would most likely never pass the House, let alone the Senate, given the current political economy of voting rights. Republicans’ well-publicized REDMAP project strategy, the “packing and cracking” districts to drive a blue-to-red shift larger “than either party has seen in modern history,” has succeeded. The strategy, largely executed through partisan control of state legislatures, continues to bear fruit despite the challenges described above. This status quo means incumbents are now more concerned about challenges from primary opponents than from their opposing party.

Even independent redistricting bodies like the State of Arizona’s commission, once established, fall prey to partisan infighting, and require court intervention to determine whether state legislatures could be removed from redistricting altogether (they could). Any successes in implementing independent or non-partisan redistricting would likely benefit Democrats; that discomfort, and increasing polarization, make consensus and independent “balanced” districts far less likely.

Bottom line

As the weight and consequence of voting behavior becomes more salient for voters and communities, the coming year might represent a turning point for equal representation. Given the new standard of partisanship it tests, Gill v Whitford is a vital case for parties and state legislators to observe; while political ideologies appear more fixed than ever, district maps are anything but.