The Supreme Court announced this morning that it has agreed to take up an important gerrymandering case on appeal from the Western District of Wisconsin. Democratic plaintiffs are trying to challenge the constitutionality of partisan redistricting, and they found a sympathetic ear in a lower court.
The bottom line in this case is that Democrats are upset that they lost control of Wisconsin's state government in 2010. They are now suing under the alleged right to have one's districts drawn around oneself in a particular way based on one's membership in (or one's affiliation with, or one's habit of voting for) a particular political party.
The plaintiffs' theory in this case that has gotten much attention is known as the "efficiency gap." By drawing districts that give their party a greater percentage of seats than their statewide vote total would imply, legislative majorities are supposedly depriving members of the minority party the right to elect legislators they prefer. They are causing too many votes by members of one party or another to be "wasted."
The majority opinion by the three-judge panel on the lower federal court did not actually adopt this standard as definitive, but it did accept its results as evidence that Wisconsin's legislators had done something wrong, which is nearly the same thing.
Their ruling flies in the face of previous Supreme Court rulings on partisan gerrymandering, which have held it permissible in far more egregious cases than Wisconsin's legislative map.
In his dissent on the lower federal court's panel, Judge William Griesbach specifically pointed out that the Wisconsin map is not a true "gerrymander." It adheres to traditional redistricting principles about contiguity and compactness of districts, and it keeps cities and communities together without employing bizarre, unusual shapes. The plaintiffs did not even attempt to argue otherwise. On those grounds alone, he argues, the map should be upheld against any challenge based on concerns over excessively partisan redistricting.
Judge Griesbach goes on to criticize the efficiency gap standard as "an enshrinement of a phantom constitutional right" that misconstrues what elections are theoretically about in the first place. One argument along these lines that is especially persuasive: Voters select candidates, not parties, to represent them. A vote for Democrat John Smith to represent Green Bay might well stand for something very different than a vote for Democrat Mary Jones to represent Madison. It's quite possible that the two stand on opposite sides on one or more critical issues. Yet the "efficiency gap" standard, in attempting to create a phantom right to a political party's satisfaction, simply commingles these two votes, as if dramatically different candidates are interchangeable.
Gerrymandering is mostly overrated as an issue. Republicans actually won a national popular majority for House in the 2016 election, despite fielding candidates in fewer districts. It would be hard to argue that their victory was based on mere map-making.
The real explanation for this case is that Democrats have been scratching about for an explanation for their recent election losses that doesn't pin the blame on themselves or their ideas, and gerrymandering seems to be the latest go-to.
More importantly, though, the power to create districts is given to state legislatures to decide in the Constitution. Some of them delegate the power, others do it themselves. The courts have decided the Constitution document creates a guarantee of equal representation (one person, one vote), and Congress passed laws guaranteeing voters won't be unjustly (with lots of debate over what that means) singled out for their race in the redistricting process. But neither the Constitution nor federal law creates any special status or right for people who affiliate with a particular political party to be drawn into a specific kind of map.
If people want to change or reduce the influence of gerrymandering in their state, they should push their legislature to pass laws or propose constitutional amendments that limit creative map-making. This effort to induce the federal courts to create even more arbitrary rules surrounding redistricting is a very bad idea that threatens to further weaken the powers reserved to state governments in the Constitution.
One can only hope the justices recognize this and tell the plaintiffs what the late Justice Antonin Scalia would have told them: If you think the law is bad, then change it; don't ask the court to change it for you.