WASHINGTON — The Supreme Court will hear a case on Tuesday that could change the way state legislators draw district lines and realign modern day politics.
At issue is extreme partisan gerrymandering, and the case has brought together odd bedfellows including everyone from former President Barack Obama, former California Gov. Arnold Schwarzenegger, Wisconsin Democrats and Maryland Republicans.
“It’s the most important case involving the structure of American politics in a generation,” said Jeffrey Rosen, president of the National Constitution Center, at a recent event hosted by George Washington University Law School. The question: Are extreme partisan gerrymanders violations of either the equal protection clause or possibly the First Amendment?
While the Supreme Court has a standard limiting the overreliance on race in map drawing except under the most limited circumstances, it has never been successful in developing a test concerning the overreliance on politics.
Now, the court is being asked to do just that, and as usual, all eyes will be on Justice Anthony Kennedy.
In a 2004 partisan gerrymander case, conservatives on the court said they thought the issue should be handled by the political branches. But Kennedy was unwilling to bar all such future claims because he thought a workable standard to measure when there is an overreliance on politics might arise down the road.
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Tuesday’s case, Gill v. Whitford, was originally brought by Wisconsin Democrats who argued the maps in their state were drawn unconstitutionally to benefit Republicans.
“Partisan gerrymanders have become more common, more severe and more durable in their effects,” Paul Smith, a lawyer for the Campaign Legal Center argued in briefs. He said that partisan gerrymanders result in a violation of the “Equal Protection Clause by discriminating against the targeted party’s voters” and preventing them from “fair and effective representation.”
Part of the problem, he argued, is the fact that modern day technology has allowed better map-drawing that has “wrested power from voters.” Using mapping software, census data and voting algorithms, he alleged the Republican map drawers diluted democratic votes by packing them into districts.
Danielle Lang, a lawyer for the Campaign Legal Center also representing the challengers, noted that in 2012 Republicans received 49% of the statewide vote and 60 seats.
In 2014 they received 55% of the vote and received 63 seats.
“Taking to the streets doesn’t work when the politicians have picked their voters,” she said during a conference in September.
The state responds that the petitioners don’t have the legal right to challenge on a statewide basis because they can “only suffer concrete, particularized harm in their specific districts,” wrote Wisconsin’s Solicitor General Misha Tseytlin. The state also argues that the maps are legitimate because the legislators considered political implications as only one of several factors and that, again, it’s not the job of the courts to write district lines.
“The last three decades of fruitless litigation demonstrate that there are no judicially discernible standards in this area of law,” Tseytlin added.
Erin Murphy, a lawyer at Bancroft who has filed an amicus brief on behalf of the Wisconsin State Senate and Wisconsin Assembly in support of the state, said that if the courts step into the battle it will transfer to judges a power that belongs with the political branches.
“Allowing claims like plaintiffs’ to proceed would therefore wrest control over the districting process away from the state legislators to whom state constitutions assign the task, and hand it to federal judges, opportunistic plaintiffs and social scientists seeking to convert academic theories into constraints on the democratic process,” she said.
A lower court ruled in favor of the challengers after conducting a trial in 2016. The court relied upon a three-part legal standard based on discriminatory intent, discriminatory effect and the justification for the law. The court concluded that the evidence established that one of the purposes of the redistricting plan — Act 43 — “was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power.”
Former President Barack Obama and former Attorney General Eric Holder have both taken up the cause. In a speech last July in Raleigh, North Carolina, Holder vowed to “ensure that after the next census in 2020 lines are drawn in a fair way — not a partisan way — to ensure that people’s wishes are reflected in the candidates who are elected.”
But the issue is not just one for Democrats. Schwarzenegger, the former Republican governor of California, called gerrymandering an “incumbent protection program” in a recent conference call.
A similar case is brewing in Maryland, but it was brought by Republicans.
And in a brief signed by Arizona Republican Sen. John McCain, lawyer Mark W. Moser asked the court to step in an adopt a standard that would block extreme partisan gerrymandering and stop special interest groups from infecting the map drawing process.
“Special interest groups, fueled by hidden funders with deep pockets and skin in the political game, are now focused on influencing redistricting,” Moser wrote. “The payoff for these groups is obvious: By shaping the decennial redistricting process, special interest groups can affect the outcome of every congressional race in a state for the next decade.”
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