Last Monday, the Supreme Court accepted hearing their first partisan redistricting case in more than a decade (last was in 2006).  The case revolves around Wisconsin’s current legislative maps, first drawn in 2011.

Specifically, the Wisconsin Democratic Party, Fair Elections Project and a group of individual voters sued the state in 2016 for drawing partisan maps that locked in heavily Republican legislative majorities despite the fact the state voted for Barack Obama in 2012 and Donald Trump by a mere 11,000 votes.

Initially, a federal district court ruled in November of last year Act 43 (the law creating the current maps) were unconstitutional on the grounds “The discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest.” The ruling only impacted legislative and not Congressional maps. Unsurprisingly, the state GOP responded by appealing to the Supreme Court.

In it’s accepting of the case the Supreme Court, in a 5-4 ruling, slapped down the federal court’s ruling new maps had to be drawn by November 1st. The  This is not surprising considering even in cases of racial gerrymandering (see Virginia and North Carolina) the Supreme Court has been hesitant to burden states with onerous requirements like holding special elections or drawing new maps before the next regularly scheduled legislative/federal election.

Less surprising is the Supreme Court undertook the appeal.  The Supreme Court in both 2004 and 2006 looked at prior partisan redistricting cases but in both cases largely ruled in favor of the defendant (the states of Texas and Pennsylvania).  The Supreme Court’s verdicts largely centered on the fact that the plaintiffs never presented a valid way to measure when partisan gerrymandering violated the Constitutional rights of voters.

This go-round, the plaintiffs argue they are armed with such a measurement.  It is called the “Efficiency Gap” and simply measures the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.  In the case of Wisconsin, the federal court found the gap was so large it impeded on Democratic voters rights of free association and the guarantee of equal protection by impeding their votes being translated into legislative districts.

Since the map was drawn, Republicans have enjoyed almost lock-step dominance in the state (except for a few months in 2012 when Democrats held a one-vote majority in the Senate).  Republicans currently enjoy a massive majority in the state senate and house.

The case could easily have national implications.  If the Supreme Court sides with the lower court, the out of power party across the country will have a new avenue to access power via court rulings challenging political maps.  In Maryland (Republicans) and Pennsylvania (Democrats) would have a leg up in their court challenges.

But, the Supreme Court ruling either way is no sure thing.  Past defendants have successfully argued that geographic and other variables are at play in determining legislative control of a state.  Additionally, voter affiliations change over time meaning a district can start leaning Democratic or Republican at the start of the decade and change (GA-6 anybody).

Indeed, Wisconsin Republicans have made these arguments.  The GOP argues they have a natural advantage because Democrats cluster in Madison and Milwaukee.  Further, Republicans argue they run superior candidates in swing districts (this is irrefutably true).

Notably, two of the three judges on the lower court that ruled against Wisconsin were Republican appointments.  One of the reasons they ruled against the state was because in 2012, Democrats in the state assembly won more votes than Republicans yet held only 39 seats.  After 2014 and last year their numbers are a paltry 34.

The plaintiffs believe this is because a majority of Democratic voters were packed into urban districts.  The result is a large number of wasted Democratic votes. While this is certainly true it is also true other variables have been at play over the last several years.

The Justice most likely to decide the case is Anthony Kennedy who in both the 2004 and 2006 cases said he was open to finding partisan gerrymandering discriminatory but unsure of how to do so.  Certainly, racial bias is a reason to throw out maps but partisanship is hard to disentangle from an inherently political process.

States are required to redraw their maps once every 10 years after the Census.  Starting with the Supreme Court’s ruling in 1962 in Baker vs. Carr that redistricting presented justiceable questions the courts began to get involved.  Soon after, in 1964, the Supreme Court established the idea of “one person, one vote” in Reynolds vs. Sims which eliminated rural areas being able to outweigh urban areas simply due to geography.

Since this time the Supreme Court has found racial gerrymandering unconstitutional, delineated rules on geographic boundaries and population differentials between districts.  But trying to decide what is and is not too political in redistricting is something the Supreme Court has never done.

Honestly, they should not try.  Discerning discriminatory racial intent is easier than pure partisanship.  Few rules and laws govern partisan map-making and thus the Supreme Court would be effectively making law.  From the standpoint of limited jurisprudence, such a ruling would open up a pandora’s box of case law.

It is also true that partisan affiliations and habits change over time and are subject to natural, non-political variables.  For example, once a Democrat does not equal always a Democrat.  Additionally, districts and their voters can change over time.  A map once thought to lock in a permanent majority can easily swing the other way within five election cycles.

Further, the quality of a candidate can matter as can the power of incumbency.  For example, local Democrats held dozens of Southern districts at the Congressional level for decades even as they consistently voted Republican for President.  Likewise, local legislators can easily outrun the partisan nature of a district due to local connections, constituent services and more.  All these factors matter explaining why the Supreme Court has been hesitant to rule in partisan gerrymandering cases.

If the Supreme Court did find in favor of the plantiffs based on the Efficiency Gap the court would essentially be saying only a certain level of partisanship is not just allowed in the process but also our politics.  Ironically, the result might be creating more partisanship as studies have shown more partisan members exist in swing districts than one-party districts (sorry mainstream narrative).

Ultimately, the Supreme Court would be wise to stay above the fray and find in favor of Wisconsin.  If not, they will once again be making laws and determining how much partisanship is allowed in the US.  That is not the role of any court!



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