The Supreme Court of the United States building on June 16, 2017 in Washington, D.C. Jonathan Newton—The Washington Post/Getty Images
6:45 PM ET
Wolf is Counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.
The U.S. Supreme Court has agreed to hear argument this fall in a potentially landmark partisan-gerrymandering case from Wisconsin. This will give the Justices an opportunity to weigh in on an important question that they’ve never clearly answered: Whether there are any constitutional limits on politicians’ ability to draw electoral maps to give their party a leg up. How the Court decides will go a long way to determining whether you choose your representatives — or the other way around — and whether you’ll be able to hold them accountable when they put party agendas over your interests.
The Wisconsin case — known as Gill v. Whitford — is a great opportunity for the Justices to (attempt to) answer this question because it involves an especially extreme and troubling example of gerrymandering. In 2010, Wisconsin voters elected a Republican governor and Republican majorities to both statehouses, giving the GOP total control over the state’s redistricting process for the first time in 40 years. The party’s leaders seized the opportunity. They hired a private law firm to supervise aides and consultants who worked away in a secret “map room” Democrats were shut out of the process, and even rank-and-file Republicans were shown only information relating to their own districts. Leadership rushed the approval process for the final plan, which was engineered to ensure Republicans would get a 54-seat majority even if they only garnered 48% of the statewide vote.
The map performed even more reliably than expected. In 2012, Republicans won 60 of the 99 seats in the Wisconsin Assembly despite winning only 48.6% of the two-party state-wide vote; in 2014, they won 63 seats with only 52% of the state-wide vote. These results are way off from what we’d expect given the history of Wisconsin’s elections. And using this extremely unusual majority, Republicans in the legislature went on to pass a raft of controversial legislation, including (on party lines) a law eliminating investigations into political misconduct that had targeted associates of Scott Walker, the state’s Republican governor.
Parties using super-majorities to pursue extreme agendas is unfortunate and wrong, but not hard to explain. After all, if legislators think their majorities are safe regardless of how you vote, why wouldn’t they think they have leeway to push the envelope? (A similar dynamic seems to be at work in Congress right now, where the wildly unpopular health care bill passed the House even with twenty Republicans defecting.)
In 2015, a group of Wisconsin voters sued to force the legislature to draw a less biased and more representative map. This was, in many ways, a gamble: no plaintiffs had taken a partisan-gerrymandering case to trial and won in more than three decades. But the plaintiffs broke that streak. (Plaintiffs in racial gerrymandering cases — which ask courts to determine whether mapmakers relied too heavily on race when drawing district lines — have historically had more success, including a major victory in North Carolina in May.)
The trial court ruled that the assembly map was “an aggressive partisan gerrymander” that unconstitutionally guaranteed a Republican majority in the state assembly “in any likely electoral scenario,” violating both the Fourteenth Amendment’s Equal Protection Clause (which, among other things, requires that all voters have an equal opportunity to participate in elections) and the First Amendment. In making their case to the court, the challengers pointed to strong evidence that the bias in the Wisconsin map wasn’t accidental, including documents showing how the mapmakers used advanced statistics to figure out how each district would vote and how they developed a string of maps that became increasingly biased in favor of Republicans with each iteration. The goal of the map, as one key document said, was to “determine who’s here 10 years from now.” The plaintiffs also relied on the results of the “efficiency gap,” a mathematical test that can flag maps that have a level of bias so high that it’s statistically unlikely that it’s random.
Wisconsin argued that it was impossible to draw a less biased map because Democrats were clustered together while Republicans were spread around the state. The trial court found, however, that any clustering — to the extent it existed — couldn’t account for the map’s severe and durable levels of bias.
If the Supreme Court agrees that Wisconsin’s gerrymander is unconstitutional, you could see substantial changes to redistricting. The ruling would open the door to challenges targeting other maps that have the same kind of extreme, lasting bias favoring one party that’s been seen in Wisconsin. A recent report by the Brennan Center shows there are roughly six congressional maps and nine or so state legislative maps like that right now. Challenges are already pending in North Carolina and Pennsylvania. More importantly, a win for the plaintiffs will change the rules of the game for the next round of redistricting in 2021. If legislators can no longer get a pass for drawing maps to maximize their party’s advantage, they’re less likely to try to do so.
Changes in how legislators draw maps would likely have a major impact on how Congress and state legislatures look and act. For example, the same Brennan Center report shows that 16 to 17 Republican seats in the current House of Representatives are due to extremely biased maps. That’s a majority of the 24 seats Democrats would need to win to take back control of the House. With a different mix of legislators on the Hill, Congress’ legislative priorities could change.
This all means that you could see the return of legislatures that more accurately mirror the diverse communities they represent, and legislators that are more responsive to your concerns. When politicians can’t pick their voters and retreat to their safe seats, voters are back in charge.
If, meanwhile, the Court rules in a way that gives partisan gerrymandering a greenlight, the battle against partisan abuses likely would shift from the courts to voters. In several states — including Michigan and Ohio — reformers are putting together ballot initiatives to turn redistricting over to independent commissions. But this solution isn’t available in every state, only underscoring the importance of the Court stepping in this fall to provide some new ground rules.
Those rules will set the tone for American politics and elections for a generation and determine whether voters, rather than politicians, run our governments. It doesn’t get much more fundamental than that.