Redrawing America: Two Supreme Court gerrymandering cases that could reshape our elections

The case marked the first time since 2004 that the justices have taken up the issue of partisan gerrymandering, the practice of redrawing districts in a way that benefits a certain political party.

Then, the Supreme Court surprised many court watchers in December, when the justices agreed to hear a second, more narrow, case out of Maryland.

The justices will hear oral arguments in that case, Benisek v. Lamone, March 28.

To some redistricting experts, the time has finally arrived for the Supreme Court to create a standard for determining when partisan gerrymandering crosses the boundaries into territory that violates the Constitution.

And they’re hopeful the justices are poised to do just that come June, when rulings in the Wisconsin and Maryland cases are expected.

If the court determines extreme partisan gerrymandering violates the Constitution, the decision could have a significant impact on how state lawmakers draw legislative and congressional boundaries in the future, with the most immediate round of redistricting occurring after the 2020 census.

Such a decision from the justices would particularly affect Republicans, who control a majority of state legislatures and oversee the redistricting process in those states.

If the justices decide the courts can weigh in on claims of gerrymandering, some fear their victory could invite a flood of challenges to current and future maps, especially after the next census. The potential for the courts to be inundated with such cases was of concern to Chief Justice John Roberts during oral arguments for the Wisconsin case in October.

But others believe the court has no business intervening in the redistricting process at all, as the authority to draw voting maps rests not with the judiciary, but with state legislatures.

“If they’re ever going to deliver, now is the time,” Justin Levitt, a Loyola Law School law professor and redistricting expert, said. “That’s not a partisan statement. When a party has unilateral control, they tend to abuse it, and that’s not a Republican or Democratic thing.”

In search of a ‘workable standard’

The last partisan gerrymandering case before the Supreme Court came in 2004, when the justices considered the case Vieth v. Jubelirer.

The case challenged the constitutionality of Pennsylvania’s redistricting plan, drafted by the Republican-led General Assembly after the 2000 census.

The justices, however, were unable to agree on a test to determine when a redrawn map is unconstitutional.

Writing for the four-member plurality — which included Justice Clarence Thomas, who remains on the Supreme Court — Justice Antonin Scalia said claims of partisan gerrymandering are outside the court’s purview. The late justice conceded that a remedy for the problem does not exist.

The Constitution, Scalia wrote, doesn’t provide a “judicially enforceable limit on the considerations that the states and Congress may take into account when districting.”

But the four dissenting justices — two of whom, Justices Ruth Bader Ginsburg and Stephen Breyer, remain on the high court — argued the court has to intervene when boundaries are drawn solely for the advantage of one political party over the other.

“Sometimes purely political ‘gerrymandering’ will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm,” Breyer wrote in his dissent. “And sometimes when that is so, courts can identify an equal protection violation and provide a remedy.”

The split left Justice Anthony Kennedy in the middle.

Kennedy, often the swing vote, agreed with the conservative wing of the bench in finding the Pennsylvania legislature didn’t violate the Constitution when it drew the boundaries at issue in Vieth v. Jubelirer.

But Kennedy didn’t rule out the possibility that in the future, the Supreme Court would be presented with a case of gerrymandering so extreme, the justices have to weigh in.

A challenge could be successful before the court, he said, “where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment.”

What evaded the justices, though, was a “manageable standard by which to measure the effect of the apportionment and so to conclude that the state did impose a burden or restriction on the rights of a party’s voters,” Kennedy said.

He wrote that “if workable standards do emerge to measure these burdens … courts should be prepared to order relief.”

Court watchers and redistricting experts believe the time for the court to weigh in, as Kennedy alluded to in his 2004 opinion, has arrived. It’s a view reinforced when the justices decided to hear not one, but two cases involving partisan district maps this term.

“It’s clear the Supreme Court wants to say something about partisan gerrymandering,” said Michael Li, senior counsel at New York University’s Brennan Center for Justice. “They don’t want to walk away from this issue. They wouldn’t have taken the second case.”

Benisek v. Lamone

Unlike Gill v. Whitford, which challenges the constitutionality of state legislative districts, Benisek v. Lamone pertains solely the 6th Congressional District drawn by Maryland Democrats in 2011.

The congressional seat had been held for nearly 20 years by Rep. Roscoe Bartlett, one of the lone Republicans in Maryland’s overwhelmingly Democratic congressional delegation.

But during the 2011 redistricting process, state Democratic officials decided to redraw the lines of Maryland’s 6th.

During a deposition, then-Gov. Martin O’Malley revealed that early in the redistricting process “a decision was made to go for the Sixth,” according to court documents.

“It was also my intent … to create a district where the people would be more likely to elect a Democrat than a Republican,” the former governor said.

Using “big data” and redistricting software, mapmakers re-drew the lines of the district to include Democratic suburbs of Washington, D.C.

“Republicans were, as a result, effectively doomed to fail in future congressional elections in the Sixth District,” lawyers for Maryland GOP voters wrote in a brief filed with the U.S. Supreme Court.

Their predictions thus far have been correct.

In the 2012 election, Bartlett lost his seat to John Delaney, a Democrat who still holds the seat.

In response to the redistricting, voters living in Maryland’s 6th filed a lawsuit, arguing their First Amendment rights had been violated.

“Because plaintiffs had successfully supported Congressman Bartlett and other Republican candidates for office, the Maryland government singled them out for disfavored treatment in the 2011 redistricting,” lawyers for the Republican voters wrote in their brief. “The result was a real and identifiable burden: The gerrymander prevented them from reelecting Congressman Bartlett, disrupted and depressed Republican political engagement in the area, and manifestly diminished their opportunity for political success.”

A lower court denied a request from the Republican voters to stop the challenged map from being used. It did, however, put the lawsuit on hold pending a decision from the Supreme Court in the Wisconsin case, Gill v. Whitford.

Gill v. Whitford

While Benisek v. Lamone focuses on the lines of one particular district drawn by state Democrats, the full state legislative map drawn by Republicans are at issue in Gill v. Whitford.

After winning control of the state legislature and governor’s mansion in 2010, Republican legislative leaders in Wisconsin created and enacted a redistricting plan in 2011.

The voting map was swiftly challenged in court as an unconstitutional partisan gerrymander.

A split three-judge district court panel declared in 2016 that the state legislative districts benefited Republican state lawmakers and violated the First Amendment. The court became the first in decades to strike down a redistricting plan on the grounds of partisanship.

The state then appealed to the justices, which agreed in July to hear the case.

In a brief to the U.S. Supreme Court, Wisconsin legislative leaders called on the justices to rebuke any effort that “wrests control of districting away from the state legislators to whom the state constitution assigns that task, and hands it to federal judges and opportunistic plaintiffs seeking to accomplish in court what they failed to achieve at the ballot box.”

Wisconsin voters, though, accused Republican state leaders of authorizing “a secretive and exclusionary mapmaking process aimed at securing for their party a large advantage that would persist no matter what happened in future elections.”

During oral arguments in October, both Kennedy and Roberts questioned whether the Supreme Court had the ability to resolve partisan gerrymandering disputes.

Roberts also raised concerns that voters — if the justices create and apply a standard to determine whether a map constitutes an unconstitutional partisan gerrymander — may assume the court is preferring one political party over another.

“That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” the chief justice said.

Justice Samuel Alito, meanwhile, raised questions as to whether devising a standard would open the floodgates for litigation in the lower courts.

“Gerrymandering is distasteful, but if we’re going to impose a standard on courts, we need one that is manageable,” Alito said.

The liberal wing of the Supreme Court, meanwhile, suggested the court could not ignore the issue any longer.

“The precious right to vote, if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?” Ginsburg asked. “Whether it’s a Democratic district or a Republican district, the result — using this map — the result is preordained in most of the districts. … What becomes of the precious right to vote?

“Would we have that result when the individual citizen says, ‘I have no choice, I’m in this district, and we know how this district is going to come out?’ I think that’s something that this society should be concerned about.”

Weighing in on political judgments

While Kennedy in 2004 suggested the high court could come up with “workable standards” for addressing partisan gerrymandering, it’s unclear from oral arguments in Gill v. Whitford whether he is closer to finding it.

The voters in the Wisconsin case, however, proposed such a method for measuring the issue. It’s called the “efficiency gap.”

The efficiency gap “counts the number of votes each party wastes in an election to determine whether either party enjoined a systematic advantage in turning votes into seats,” according to the Brennan Center for Justice.

Votes that are cast for the losing candidate are deemed “wasted,” as are those cast for the winning candidate “in excess of the number needed to win.”

The district court in Wisconsin relied, in part, on the efficiency gap when determining the 2011 legislative map was unconstitutional. But the court, and experts, say the method is one of several that can be used to measure partisan gerrymandering.

“I think [the Supreme Court] will decide the math is the evidence, but the problem is qualitative and not quantitative,” Levitt said. “The math is a way to figure out if the intent was to screw over the other party.”

But for Jason Torchinsky, a partner at the Washington, D.C., law firm Holtzman Vogel Josefiak Torchinsky, the efficiency gap is flawed.

“The efficiency gap was essentially reverse engineered to serve the particular purposes of which they are now using it,” he said. “It’s not well-rested in social science.”

Torchinsky, who is representing GOP legislative leaders in Pennsylvania in a partisan gerrymandering case, said the method fails to account for the fact that Democratic voters tend to be clustered in big cities, while Republicans generally live in suburban or rural areas.

Evolutions in technology designed to assist mapmakers with drawing legislative and district lines can help to identify instances of extreme changes in districts, experts say.

This shift has helped to create a landscape in which the court has more tools at its disposal to create a standard for easily measuring partisan gerrymandering, they conclude.

“There are a lot more evidentiary tools available for the court now, and that should give the court comfort,” Li said. “They can reliably flag when a map goes too far.

“It’s akin to the advances in medicine,” he continued. “There are some diseases that are hard to diagnose, and now we have more sophisticated tests. That’s been the same in the gerrymandering context.”

But while the technological advancements can help detect extreme abuse of gerrymandering, Li said it also makes gerrymandering easier to do.

Recent cases, however, have demonstrated how the courts can figure out whether a map is one that’s fair, Li said.

The Pennsylvania Supreme Court, for example, struck down the congressional map drawn by state Republican lawmakers in 2011, deeming it an unconstitutional partisan gerrymander.

“Courts around the country are increasingly finding it’s well within their wheelhouse. All the concerns the Supreme Court has isn’t the case,” Li said. “They find the cases fairly straightforward.”

Keith Gaddie, a political science professor at the University of Oklahoma who helped develop the tools used by Republicans in Wisconsin to draw the state legislative map in 2011, said technology can also help uncover whether the mapmakers purposely intended to draw a map to advantage their party.

“If I were to run a simulation of 10,000 maps, and then you can subject these maps to different measures — compactness, maintenance of county integrity, city boundaries — what you can do is come up with a distribution of maps that are mostly Democratic or Republican in terms of their bias,” he said. “You can see where the map produced falls. If it’s an extreme outlier, you have a strong indication of intent. It didn’t happen by chance.

“The technology is a forensic tool,” Gaddie continued. “That’s like going in and looking at flows of money through turnkey cash operations and saying, ‘OK, no laundromat makes that much money. No arcade makes that much money.’ You’re using it as a forensic tool.”

Though some, such as Wisconsin voters, are hopeful the Supreme Court devises a standard to address the issue, it’s possible the justices will again decide not to intervene at all.

And for Torchinsky, that would be the appropriate action.

“Deciding lines has always been the province of the political branches, not the judicial branch,” he said. “If you go back and look at how some of our county lines were drawn, they were drawn because of political disputes between the founding fathers.”

Torchinsky said there are claims that should be before the court, such as those concerning the Voting Rights Act or equal population cases.

“But when you get into asking the court to weigh in on whether political judgments are valid or invalid, the federal courts don’t tend to make judgments about political decisions, and yet that’s what the Democrats are now asking the courts to do, and they’re asking the courts to do it because they have a real demographic problem,” he said.

Torchinsky also said he doesn’t believe partisan gerrymandering is a problem, but rather a “part of the design of single-member districts.”

“We don’t have a parliamentary system,” he said. “People are elected by single-member districts. … That’s how our system was designed from the beginning.”

In the hunt

In taking up two partisan gerrymandering cases, as the justices did this term, Levitt predicted court watchers may get a glimpse during arguments March 28 into the testing of a standard proposed after the justices heard Gill v. Whitford.

“What I think you’re watching is the court has a tentative answer in the Wisconsin case, and they want to see how whatever they’ve come up with in Wisconsin works in another scenario,” he said. “I think it’ll be an intriguing window into the opinion they may have written in Wisconsin.”

But as is often the case with high-profile issues before the court, Kennedy holds the keys to the court’s decision in the Wisconsin case, and perhaps the Maryland case as well.

“They’re still in the hunt, and the only justice who still matters is still in the hunt,” Levitt said of the search for “workable standards.”

“It sure looks like from the Wisconsin argument the court is still divided 4-4-1, and it still looks like Kennedy is at the center and will be the deciding vote on this issue,” he said.