Partisan gerrymandering - hearing next week

SCOTUS Blog: Gill v. Whitford

Issues: (1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

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There are numerous briefs filed. Here's the ACLU's.

Summary
If the Wisconsin Legislature waited until the votes had been cast, and then drew district lines to ensure that its majority retained power regardless of the choices of the voters, its conduct would be clearly unconstitutional. Instead, the Wisconsin Legislature acted before the election and, by using sophisticated
technology and expert assistance, it achieved the same result. The Legislature ensured that the majority party would retain control under any likely electoral scenario, “freez[ing] the status quo . . . [against] the potential fluidity of American political life.” Jenness v. Fortson, 403 U.S. 431, 439 (1971). Locking up the political process for the purpose of disabling competition among partisan viewpoints is at odds with the proper role of government in administering elections. It is inconsistent with democratic values and constitutional precedent holding that government must function as a neutral referee in administering elections. The state cannot regulate electoral competition with its thumb on the scales. ...

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Watch what the newest Justice, Gorsuch, does, and you'll have the decision. I'm less than optimistic.

caw

Of course, had Scalia been replaced with even a moderate justice, as would been proper, the issue would not be in doubt.

The liberal wing of the court is taking a more global view. In the case of Wisconsin, even though Republicans received only 48% of the vote, they nonetheless control the legislature 60-39. This isn't a case of gaining a slight advantage; it's a case of getting complete control with a super majority despite being the minority party.

It seems pretty clear that this is a case where the government, who controls the election process, has figured out a way to thwart the will of the people as reflected in their votes and ensure themselves permanent control of the political process of the state no matter how the people of the state vote.

This is so clearly an intrusion into the democratic process that it cannot be allowed to stand. Even the conservative justices admit it's an unpleasant state of affairs.

But the conservative justices are not concerned with the consequences of the states actions. They are concerned with the very narrow legal question of how to define exactly what constitutes gerrymandering -- how to precisely define what exact actions or procedures would is rise to the level of unconstitutionality. And since that is not something that has a simple answer, they are going to decline to interfere.

Their stance seems to be that yes, this is a very bad thing with serious repercussions, but unless someone can precisely define
exactly how it's being done, and propose an exact standard to prevent it, the court must let it continue.

Will Kennedy side with the liberal wing this time? Maybe so. He seems to have become a bit more liberal in the past few years. A bit more concerned with the real life consequences of Supreme Court rulings. But it's a very thin thread to hang ones hopes on.

From the New Yorker:

A perfect example of how Neil Gorsuch views the purpose of the SCOTIS. Show me, he says in effect, exactly where in the Constitution it specifically states we can tell the states how to draw their legislative districts?

Ruth Bader Ginsburg had the perfect response, not that it will mean anything.

"One man, one vote," she muttered, underlining what the actual purpose and history of the Supreme Court is about.

https://www.newyorker.com/news/news-desk/ginsburg-slaps-gorsuch

rugcat said:

From the New Yorker:

A perfect example of how Neil Gorsuch views the purpose of the SCOTIS. Show me, he says in effect, exactly where in the Constitution it specifically states we can tell the states how to draw their legislative districts?

Ruth Bader Ginsburg had the perfect response, not that it will mean anything.

"One man, one vote," she muttered, underlining what the actual purpose and history of the Supreme Court is about.

https://www.newyorker.com/news/news-desk/ginsburg-slaps-gorsuch

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Someone mix that woman an immortality potion, stat. She is magnificent, and we need her here as long as possible.

Gerrymandering (no other kind than partisan) has been around since Eldridge Gerry ( after whom the trick has been named) ... and he was around long ago enough have signed the Declaration of Independence. Any reversal would be quite a change in business, not that change is a bad thing.

PorterStarrByrd said:

Gerrymandering (no other kind than partisan) has been around since Eldridge Gerry ( after whom the trick has been named) ... and he was around long ago enough have signed the Declaration of Independence. Any reversal would be quite a change in business, not that change is a bad thing.

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I think the two main differences are the scale on which it's being done now in almost every Republican controlled state, and perhaps more importantly the new tools and data mining available to precisely identify voters and come up with models with much more accuracy.

Technology has turned the art of gerrymandering into a science.

In California, all legislative and congressional districts are drawn up by an independent non-partisan commission. As opposed to Wisconsin, where new district lines are drawn up by the Wisconsin state legislature on a strictly partisan basis.

All states should be required take redistricting out of the hands of state legislatetors and set up independent commissions instead. This coulld not be more fair or simple – and it would prevent gerrymandering by either party.

rugcat said:

All states should be required take redistricting out of the hands of state legislatetors and set up independent commissions instead. This coulld not be more fair or simple – and it would prevent gerrymandering by either party.

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Which would depend on who got selected/appointed to the commission, and how.

caw

blacbird said:

Which would depend on who got selected/appointed to the commission, and how.

caw

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So young and so cynical.

Good idea rugs but it has to go through a political process to get done which makes if unlikely in many states. Even in his day Gerry was able to pull it off despite being "exposed" and the shape of one of his districts being called a gerrymander. With the population as small as it was then he didn't need all the tools we have today. Perhaps those tools put today on a level playing field with what he had, Districts are redrawn after the census every 10 years so the party in control works to cement their control by drawing the districts to get the most advantage. I don't know what the time frame requirements, if any, are. It's in the same basket with most states allotting all of their electoral votes to the candidates who gets the most votes statewide, strengthening the influence of the cities and in a sense disenfranchising much of the rural population. In terms of fairness that should be changed but politics is not likely to allow it when most of the votes are urban and selfishness prevails. Right or wrong won't matter much and it is evidently a constitutional OK if night right and the founding fathers, even after recognizing it, elected not to disallow it.

The Supremes voted 9-0 to send the case back to the lower court. The plaintiffs have to prove they have legal standing to make their case. The decision probably kills their claim.

Gregg said:

The Supremes voted 9-0 to send the case back to the lower court. The plaintiffs have to prove they have legal standing to make their case. The decision probably kills their claim.

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Of course, not even SCOTUS wants to disrupt the entrenched party status quo. Yet somehow a piece of paper filed with a government agency (a corporation) has standing to assert that paper's "religious" rights (see Hobby Lobby).

MichaelC said:

Of course, not even SCOTUS wants to disrupt the entrenched party status quo. ...

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Not completely fair. SCOTUS has recently reversed/restored a number of state district maps, or let lower court rulings to restore reality stand.

Most recently, Pennsylvania.

No justice felt the plaintiffs had standing in Wisconsin ON THE BASIS OF THE CASE AS SUBMITTED. The lower court may retry if more substantial evidence of harm can be shown. Not a definitive end unless the plaintiffs give up.

It is also worth noting that the Maryland case in reverse (Democratic gerrymandering) was booted as well (injunction not sought soon enough).

A good summary here.