State officials in Wisconsin asked the Supreme Court on Monday to put on hold a federal court ruling that fashioned a new test for judging the constitutionality of partisan gerrymandering – the drawing of election districts specifically to favor one party’s candidates over the other’s. The case of Gill v. Whitford is one of the most closely-watched cases on that highly disputed issue – something the Justices have never settled.
Partisan gerrymanders have been a part of American political history since Massachusetts Governor Elbridge Gerry in 1810 gave his name to the tactic by making sure that his party had clear control of the state senate. The senate map of that day had the shape of a giant lizard – a salamander — looming over the state.
Although Justices on the modern Supreme Court from time to time have criticized the practice as a contradiction of the equality principle of “one-person, one-vote,” they have never agreed on a constitutional formula for testing when partisanship had gone too far in drafting new electoral maps.
The test case now developing before the court involves a three-part test that the majority of a special three-judge trial court fashioned last November in striking down a 2011 map of districts for electing the 99 members of the Wisconsin state senate.
The majority said the formula should focus on whether election boundaries are drawn with the specific aim to “entrench” one party in political power.
The first step in the test would be to judge whether legislative leaders specifically intended to discriminate against the other party’s voters by putting a severe burden on the effectiveness of their votes. The second step is to test whether the advantage given to one party’s candidates is a sizeable one and one that is likely to endure election after election. If the two steps have been met, the final one is to judge whether the legislative leaders can justify the maps as serving neutral goals in the redistricting process.
The majority concluded that the Assembly map involved the most extreme form of partisan manipulation of election boundaries in modern times. Although now blocked by an order of that court, the map was actually used in elections in 2012 and 2014. The results were that, having won just over or just under 50 percent of the statewide vote for Assembly candidates, Republicans won more than 60 of the seats. The court majority said the maps assured the GOP that it would gain similar results regularly until new maps are drawn after the 2020 census.
The Supreme Court has not yet formally decided whether to review the case; it is scheduled to take its first look at the state’s appeal at a private Conference on June 8. The case, however, reached the court in a technical form that the Justices must take some final action on it, one way or the other; they cannot simply refuse to hear it. It would take a majority of five Justices to reach a decisive outcome.
In asking the Justices to also consider at that meeting next month the state’s new request for a postponement of the lower-court ruling, Wisconsin officials said that the legislature in under an order to come up with a new Assembly map and have it approved by the governor by next November 1.
The state’s appeal argues that the lower court majority’s ruling was so wrong in so many ways that the Justices should simply overturn it by a summary ruling –that is, without even calling for full briefs or holding a hearing. But if the court doesn’t do that, and decides to take on the case for review at its term beginning in October, then a delay of the lower-court ruling should be ordered.
The state raises a variety of legal objections to the lower court decision in ifs appeal, but the main legal claim is that partisan gerrymanders simply are not capable of being judged by a constitutional standard. In more than three decades of court battles over partisanship claims in redistricting, the appeal argues, no one has yet devised a “limited and precise’ test for settling such disputes. The court, it added, should simply declare the question beyond the powers of the courts.
Although there has never been a majority of the Supreme Court that would embrace a test for the legality of partisan-driven maps, Justice Anthony M. Kennedy has suggested several times that the court should not declare an end to the pursuit, but await development of a workable constitutional standard.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.
