Gerrymandering is a decennial and highly partisan sport for American politicians and consultants.  And nowhere has it been more so than in three states, Wisconsin, North Carolina and Texas.  Indeed, so partisan has it become that Democrats have convinced an appellate court to side with their interests and force the state of Wisconsin to appeal to the Supreme Court (oral arguments are scheduled for next month).

Gerrymandering can take many forms, some insidious, some partisan, and some plain racial.  In Wisconsin, new territory is being charted in the form of a map that is too partisan.  No Supreme Court ruling has found a map can be too partisan.  The drawing of Congressional and legislative lines is by its very nature a partisan action.

In Wisconsin specifically, GOP officials in 2011 drew a map that locked in their assembly majorities from 2010.  Under unified GOP control the state drew lines that locked Democrats into political irrelevancy (kind of like Illinois, but Democrats did it there so it is fine).

For example, in 2008, the state legislative lines had a slight GOP lean.  That election, Democrats won 57 percent of the assembly vote and garnered 52 seats to the GOP’s 46 seats with 43 percent of the vote (a conservative Independent caucused with Republicans).  In 2012, the changed maps showed their effects.  Democrats won 53 percent of the assembly vote but won a mere 39 seats to the GOP’s 60.  In 2016, Republicans won 53 percent of the assembly vote and an eye-popping 64 seats.

Such results have prompted liberal scholars to come up with mathematical tests to assess whether a map passes the partisan smell test.  In prior court rulings, all but one conservative jurist, Anthony Kennedy, have closed the door on ever saying a map is too partisan.  Liberals would say maps should be non-partisan and ram it down the states throats if they could get away with it.

Using mathematical tests to assess partisanship is fine and all but determining at which point it crosses the line is the difficult part.  More so, can the mathematical model account for partisan or cultural changes over time?

For example, just look at the state of West Virginia (a mostly white state like Wisconsin).  The current map was passed in 2011 by a Democratic Governor and a Democratic legislature.  Last year, every single legislative district voted for Trump.  Today, those Democratic maps have produced a GOP majority in the legislature, an all GOP US House delegation and a GOP Governor.  The mathematical tests used to assess partisanship and violation of one’s 1st Amendment rights would say West Virginia violates this idea.  But one could easily argue, in turn, West Virginians made the choice to vote Republican irregardless of partisanship.  That’s the tricky nature of determining what is and is not too partisan.

Voters move, opinions change over time and it is unlikely a mathematical model of any kind can account for this.  Plus, it would be hard to rationalize being able to meet other state and legal redistricting requirements (compactness, keeping communities of interest together, etc.) on top of this one without seeing some tortured legislative districts.

Certainly, Wisconsin’s situation is unique but one thing it is not is racially based.  The state is more than 90 percent white meaning the map is based exclusively on partisanship.  The same cannot be said for maps in the South.  Specifically Texas and North Carolina (though Alabama deserves a mention here to).  In both states, legislative and Congressional maps have been shot down by the courts over their racial intent.

Unlike partisanship, racial mapmaking has been a big no, no in this country for decades as first defined by the Voting Rights Act.  As a result, many states had to get “preclearance” from the Department of Justice if any electoral changes were made in the state (think changing precinct lines.  Yes, I kid you not).  The Supreme Court saw fit to strike down this aspect of the VRA in 2013 but left the rest of the law intact.Not surprisingly though, the history of race dominated their processes.

In Texas, the state has seen a booming population due to the influx of Hispanics and Asians.  Easily 50 percent of the population growth in the state from 2000-2010 was Hispanic.  But the state GOP, having controlled all statewide offices since 1994 and the legislature since the new millennium worked hard to draw lines that locked in their majorities.  As a result, the Congressional lines of the state resulted in a 24-12 GOP Congressional delegation and lopsided legislative majorities.

Democrats and civil rights groups cried foul even before 2012 and a San Antonio District Court in 2011 found the lines were a racial gerrymander.  The District Court drew temporary lines for 2012 but the Supreme Court struck them down for imposing a burden on the state.  In 2013, Texas made much of the 2011 District Court map permanent.

But a flurry of new rulings have again brought racial gerrymandering to the forefront.  Earlier in the year, a different District Court found the 2011 maps were unconstitutional and soon after the same court found the current 2013 lines were as well.  Specifically, the District Court found two Congressional districts (could have been much worse for the GOP) were racial gerrymanders for splitting up Hispanic communities.  In turn, the GOP appealed to the US Supreme Court and in a one-page order, Justice Alito ordered a stay on the District Court’s ruling.

Similar to Texas, North Carolina’s legislative and Congressional maps have been the subject of racial line drawing.  Interestingly, due to a quirk in state law that allows the legislature to approve new lines without the Governor’s approval the new legislative GOP majorities in 2011 rammed through a partisan map in the fullest.  For decades, Democrats in North Carolina who controlled the legislature did the same thing and now the GOP was returning the favor.

The 2012 results highlighted the significant change.  That year, Democrats won the Congressional and legislative vote 51-49 in the state.  But, the 6-5 Democratic Congressional majority turned into a 10-3 GOP majority and the party gained seats in the legislature (Romney did also win the state).

Due to this the GOP gained a super-majority in the state legislature and with Governor McCrory helming the state the GOP ushered in a plethora of conservative legislation.  However, a series of lawsuits making their way through the courts came to a head this year when it was ruled the state had racially gerrymandered 28 state legislative districts.  Failing an appeal to the US Supreme Court and getting no help from the state’s new Democratic Governor, the legislature redrew the lines and explicitly argued the new lines were meant to emphasize partisanship and not race (a strange admission but one so far the highest court in the land has accepted).

Complicating matters further in many Southern states is the fact race and partisanship go hand in hand.  When 95 percent of blacks support Democrats it is easy to pack them into one district or a handful of districts arguing they can elect the “candidate of their choice,” while maximizing your partisan gain.  The Supreme Court in recent years has handed defeats to Virginia and Alabama based on overturning these arguments as opponents of the maps have cited how it limits the ability of black voters to maximize their voting power.  Such is the contradiction of the Voting Rights Act.

In turn, the Voting Rights Act is showing its age.  No longer is the country divided along two major colors (black and white).  As the country becomes more diverse, courts will continue to disagree with each other and the Supreme Court will find it hard to keep their decisions rational and logical.

Gerrymandering is unlikely to disappear anytime soon.  For all the cries of non-partisan redistricting commissions, many state legislatures are opposed to handing over such power.  Additionally, in states like Illinois and Maryland, the courts often short-circuit such efforts (where efforts are actually led by Republicans).

In sum, two major themes run through American political redistricting.  The first is redistricting is partisan in nature but at what point does partisanship infringe on the right to free speech and association?  Secondly, how does one disentangle race and polarization in an era in the South where 90 percent of whites in some states vote Republican and 90 percent of blacks vote Democrat?

The next few years could go a long way in determining the answers to these questions.

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