The Supreme Court and Gerrymandering

Posted October 06, 2017

A Pennsylvania judge said Wednesday that his court was unlikely to decide a civil case challenging the constitutionality of the state's congressional district maps in time to affect next year's elections. Following the 2010 Census, the Wisconsin Legislature - controlled by Republicans - drew new district lines as required by the Constitution.

Most past gerrymandering decisions have been based on the Fourteenth Amendment's equal protection guarantee, but Gill vs. Whitford reached the Supreme Court after a district court ruled that the Wisconsin map watered down the voting rights of citizens on based on their party affiliation - in other words, the district lines violated voters' First Amendment right to free association.

Legislative districts in the 50 US states, redrawn every decade after the national census to reflect population changes, represent the individual components of representative democracy. Supreme Court authorities generally predict a 5-4 decision in favor of class waivers, however, the outcome may not be that simple.

The conservative Judges including Justice Samuel A. Alito Jr. agreed the process is distasteful and one from which both Democrats and Republicans have benefitted but stated the Court has to find a standard to declare when it gets out of hand.

Torchinsky noted the Supreme Court's ruling, if it found that there is no identifiable legal standard that can be used to define extreme partisan gerrymandering, could make the Pennsylvania case moot.

Henry Flores, a St. Mary's University political scientist, said that in San Antonio, gerrymandering keeps voters who don't think their candidate has a chance to win because of the way districts are drawn away from the ballot box.

On the national level, even though Republicans won less than half the House votes, they won 241 of the 435 House seats. In Wisconsin, the line-drawing after the 2010 census was so slick that in the next election the GOP won less than 49 percent of the vote but wound up with almost 60 percent of the seats in the state legislature's lower house.

"Under the elections clause the legislatures are not to use political and partisan information to draw their congressional districts at all", Ballard said.

As Chief Justice John Roberts noted in his remarks on the Wisconsin case October 3, the courts "authority and legitimacy" would be hurt if it struck down legislative districts in so many states. "It is likely to be viewed as a partisan court going forward much more, now that all the liberals on the Court were appointed by Democratic presidents and all the conservatives by Republican presidents".

The Commonwealth Court case is part of a two-pronged push for redistricting reform in Pennsylvania ahead of the next U.S. Census.

Justice Sonia Sotomayor last month said she doesn't support having cameras inside the Supreme Court, saying she fears they would distort the justices' behavior and hurt the court's role in government.

In a well-functioning democratic republic, each vote must be counted and also needs to have a chance of counting.

If district lines can be redrawn so that one political party always has a distinct advantage, no matter what the numbers and affiliations of overall voters in a state, the most fundamental element of a democracy - the vote - will lose much of its meaning.

What is that going to do to the integrity of the institution of the Supreme Court? At oral arguments, Kennedy at least appeared open to setting a standard to determine when gerrymandering goes too far, though it's hard to say how he'll vote.

At one point, Ginsburg asked, "what's really behind all of this?" and anxious about the "precious right to vote". It could have big impacts on who you vote for moving forward. Ironically, however, a ruling in their favor could help the GOP in the next round of redistricting. It's going to throw us into the thick of politics.