In Unpacked, Brookings experts provide analysis of Trump administration policies and news.
THE ISSUE: The United States Supreme Court is considering two partisan gerrymandering cases this session from Wisconsin and Maryland. The Court’s decision in Gill v. Whitford and Benisek v. Lamone in June could have important consequences for the political make up of our federal and state legislatures, as well as for our democracy.
The cases before the Court from Maryland and Wisconsin appear to be fairly egregious examples of partisan gerrymandering, the question is whether they have become so partisan as to violate the Constitution.
THE THINGS YOU NEED TO KNOW:
- During this term, the U.S. Supreme Court will consider two gerrymandering cases, one from Wisconsin and one from Maryland.
- For most of its history, the Court refused to get involved in partisan gerrymandering cases.
- In 2004, five U.S. Supreme Court justices said they would not get involved in a Pennsylvania case that alleged partisan gerrymandering because there was no standard by which to judge it. The other four judges expanded on that by saying the Court should stop looking for a standard because it did not exist.
- Justice Kennedy said that he agreed not to get involved in the 2004 Pennsylvania case but hoped the day would come when the court could identify a “clear and precise standard” by which to evaluate partisan gerrymandering.
- The cases before the Court from Maryland and Wisconsin appear to be fairly egregious examples of partisan gerrymandering, the question is whether they have become so partisan as to violate the Constitution.
- In Maryland’s Benisek v. Lamone case, the state Democratic legislature redrew a reliably Republican district that moved around 700,000 voters to produce a Democratic district and the defeat of the Republican incumbent in 2012.
- In Wisconsin’s Gill v. Whitford case involved the entire general assembly, the lower house of the Wisconsin legislature. in subsequent elections, under a map drawn by the Republican legislature in 2011,the general assembly was about two-thirds Republican members and one-third Democratic members even though the aggregate votes cast for all candidates was roughly fifty-fifty for both Republicans and Democrats.
- In an oral argument in October, Justice Breyer offered what he thought was a workable standard but there was a lot of disagreement. Chief Justice Roberts said that overthrowing the Wisconsin map would be inviting a flood of partisan gerrymandering litigation that the Court would have a hard time deciding. Because the justices would have to cite complicated statistical arguments, Justice Roberts is concerned that most citizens would see involvement as a smoke screen for the Court’s preference for one political party over the other.
- As the Maryland and Wisconsin cases were moving through the Supreme Court, a sideshow was developing in Pennsylvania of potentially great consequence. There, in early February, Justice Alito, who hears emergency appeals from the third judicial circuit, including Pennsylvania, refused to overturn an order of the Pennsylvania Supreme Court.
- Justice Alito did not explain his refusal but it was clear that it was because the Pennsylvania Supreme Court based its decision entirely on the Pennsylvania State Constitution, a legal issue that the U.S. Supreme Court usually does not involve itself.
- At issue in this case were the eighteen House of Representative districts in Pennsylvania, of which thirteen seats are held by Republicans and five by Democrats.
- As was the case in Wisconsin, the aggregate number of votes for candidates was roughly fifty-fifty for both Republicans and Democrats.
- The Pennsylvania Supreme Court directed the legislature to redraw the map and said if the legislature and the Democratic governor could not agree, the Supreme Court itself would draw the map, which it did in mid-February.
- When the map goes into effect for the 2018 elections, it could change a thirteen-to-five Republican to Democrat ratio imbalance in the legislature to perhaps to a more even nine-to-nine.
- Those five additional seats could make a difference in the struggle for control for a majority in the House of Representatives, which is up for grabs in the November 2018 elections.
- We don’t have a decision on either of these cases yet. The Wisconsin case was argued before the Court in early October and the Court will take up the Maryland case in late March, but we can speculate.
- If the Court adheres to its position that there simply aren’t discernible standards by which to evaluate claims of partisan gerrymandering, that may encourage state legislatures to engage in even more egregious partisan gerrymandering, ignoring the votes of substantial members of the population of the state–a real loss for democracy.
- If, on the other hand, the court has a “Eureka” moment, and finally discovers a standard, and on that basis dismisses the Wisconsin map, you can be sure that, as the Chief Justice said, the court will see a flood of partisan gerrymandering litigation.
- It is conceivable that the court might try to thread the needle and refer to partisan gerrymandering as distasteful, as one of the justices said, but say they are only going to get involved in those cases under a standard they will announce, only in extreme circumstances, and perhaps Wisconsin represents one of those extreme circumstances.
- The Court may throw out the Wisconsin map and order that it be redrawn but warn litigators in the states not to bring them every run of the mill partisan gerrymandering case because they simply don’t have the capacity or the standards by which to judge them.
- We will know the answer to all these questions come June, when the court typically ends the term that begins the preceding October.
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Free speech shouldn’t be a partisan issue, but it has been drawn into the larger dynamics of polarization in this country.