The Supreme Court is back in business after its summer recess. It is hearing oral arguments on several cases that have landmark potential. Perhaps the most consequential is Gill v Whitford, a Wisconsin case about gerrymandering.
Gerrymandering is the ancient practice of drawing legislative district boundaries to flagrant partisan advantage. Both parties do it when they can – that is, when they control their state governments – but Republicans, using sophisticated computer software, got to work in the 1990s and completed their project in the 2016 election by capturing more state legislative seats and chambers than at any time since 1922.
Beginning in the 1960s the Supreme Court has mandated one-person-one-vote redistricting everywhere, from Congress to the Columbia City Council and the Boone County Commission. More recently it has declared unconstitutional redistricting that denied equal protection to black or Hispanic voters. But it has never said purely partisan gerrymanders are unconstitutional.
One reason is that it has never identified a way to measure gerrymandering. It’s sort of like the famous quote by Supreme Court Justice Potter Stewart about obscenity: “I can’t define it but I know it when I see it.” So it is with gerrymandering, and the Wisconsin case looks and smells like a gerrymander – Republicans won 48 percent of the total vote for state legislators but won 63 percent of the individual seats -- but is it unconstitutional?
Some political scientists have developed an “efficiency gap” measure that looks at the difference between each party’s so-called “wasted votes.” It’s complicated, and because it is hard to explain, and then to justify as a tool of constitutionality, the court may reject it.
Actually the four conservative justices have basically already rejected it, saying that this is a purely political brawl, and historically the Court has stayed out of purely political brawls. The four liberal justices are ready to embrace a solution. The swing vote is Anthony Kennedy, who has said in an earlier opinion that he is open to the possibility of a valid test.
Redistricting is perhaps the most intensely political activity of them all, because the results last so long – the ten years between censuses, an eternity in politics. As the saying goes, usually voters get to pick their legislators, but in redistricting, legislators get to pick their voters. And now one Supreme Court justice may get to make the biggest pick of them all.