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A landmark gerrymandering case heading toward the Court’s next term

April 25, 2017 by Scott Bomboy


The Supreme Court will likely end hearing arguments for its current term in late April, but some court followers are looking ahead to the big cases that could be in front of the nine Justices starting in October.

Soon, the Court could accept a big case about religious freedom and gay rights, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The question in that case centers of a Colorado cake maker who declined to design a cake for a same-sex wedding party on religious grounds. 

But a potential landmark case about partisan gerrymandering could take the cake, in literal terms, for next year’s Supreme Court term if the Justices accept it before October.

In March, the state of Wisconsin filed an appeal to the United States Supreme Court seeking to overturn federal district court decision. in Whitford v Gill. The 41-page petition from state attorney general Brad Schimel asks the Supreme Court to overturn the decision based on five points, including the concept that partisan gerrymandering isn’t “justiciable,” or a matter that a court can even decide, as related to this one case.

In November 2016, the three-judge federal panel in the Western District of Wisconsin ruled otherwise, in a 2-1 vote, that voting district maps drawn in 2011 heavily favored Republican political candidates.

“The plaintiffs have established … that the defendants intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period,” the court said. “They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.”

The dissenting judge argued that there can never be a partisan gerrymander unless the legislature, in drawing new maps, creates oddly shaped districts that violate the traditional principles of having compact, contiguous districts that respect political boundaries and zones of political interest.  The 2011 map, he argued, was true to all of those principles, so that should be the end of any oversight by a court.

Court observers at the time seemed certain Whitford v. Gill would wind up at the Supreme Court sometime in 2017.

“The case probably will reach the Court for action after there is a ninth Justice to fill the existing vacancy on the bench,” said our Supreme Court correspondent, Lyle Denniston, at the time.

Bernard Grofman from the University of California-Irvine, who specializes in this subject area, also wrote in the Washington Post that Whitford v. Gill has the potential to be a landmark case destined for a big court date. “Whitford was the first time a federal court has ruled a single-member district plan a partisan gerrymander. When there is an appeal of that decision, it will almost certainly be heard by the Supreme Court and has the potential to be a ‘game-changer,” Grofman said.

Grofman noted that the Whitford case succeeded with at least two federal judges because it was based on a First Amendment freedom of association test rather than a 14th Amendment equal protection test.”

Another factor, Denniston said, is that the Wisconsin decision involves a proposed formula to test for partisan gerrymandering. “The Supreme Court from time to time has shown some interest in the question of when too much partisanship has gone into drawing up new election maps, but it has never found a formula for answering that question.  The Wisconsin ruling is the first to accept an answer suggested by lawyers and political experts,” he said back in November.

That test factor, based on a legal and political theory called the efficiency gap, would be a critical factor to Justice Anthony Kennedy, who would likely be the deciding justice in the case if and when it reaches the Court.

It was Justice Kennedy, in a decision called Veith v. Jubelier from 2004, who said that the courts could possibly consider partisan gerrymandering cases in the future; in the Veith case, Kennedy agreed with a plurality of Justices that the Veith case itself wasn’t justiciable, but he wrote his own concurring opinion.

In Veith, Justice Antonin Scalia wrote that no formula could be found to settle partisan gerrymandering claims since they were political issues in nature and not subject to a court decision. “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” Kennedy said.   “If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned the field. That is a risk the Court should not take.”

Scott Bomboy is the editor in chief of the National Constitution Center.

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