Partisan gerrymandering is being actively contested in the federal and state courts, with two consequential cases pending before the U.S. Supreme Court. The cases revolve around the basic question: When does the Constitution permit a state legislature to redraw the boundaries of a voting district to favor one party and put another at a disadvantage, even if the favored party receives more representation than its vote share would suggest?

The Supreme Court has struggled with the issue in the past, and has never struck down a voting district as a partisan gerrymander. (It has struck down voting district lines as racially motivated, but not motivated for partisan reasons.) With five different justices on the bench since the last time the Supreme Court dealt with partisan gerrymandering in 2004, the Court is revisiting the issue once again, this time in two cases: one challenging a Republican-drawn state legislative map in Wisconsin (Gill v. Whitford, No. 16-1161); the other involving a Democratic-drawn map of a congressional district in Maryland (Benisek v. Lamone, No. 17-333). Legal and political experts have suggested that the Court’s rulings in Gill and Benisek could dramatically reshape American politics, especially with state legislatures poised to redraw district maps in 2021. Traditionally, state lawmakers redraw the state and congressional district maps after the census every 10 years.

The Gill case involves a Democratic-voter challenge of the boundaries of the Wisconsin state legislative district map, redrawn in 2011 by Wisconsin Republicans after they gained control of the legislature and governorship for the first time in 40 years. A divided three-judge federal panel (W.D. Wisconsin) in 2016 struck down that map, concluding that it violated the Constitution because it systematically diluted the voting strength of Democratic voters statewide. The second case, Benisek, involves a Republican voter challenge to the boundaries of a Maryland congressional district. Benisek focuses more narrowly on a single congressional district and limits its review to the First Amendment freedom-of-association considerations and does not examine the Fourteenth Amendment equal protection issues raised in Gill. Here are three things to watch in the partisan gerrymandering decisions, which could be among the last in this term announced by the Court:

1. Should the federal courts get involved in reviewing partisan-gerrymandering cases at all?

Justiciability concerns could derail the Court’s even reaching the merits of partisan gerrymandering. Doubts over the authority of the courts to get involved in these kinds of cases prevailed in 2004 when the Court, in a split decision in Vieth v. Jubelirer, 541 U.S. 267 (2004), declined to review a partisan gerrymandering claim because no appropriate judicial solution could be found. Justice Antonin Scalia, for a four-member plurality, wrote that it was time for the Court to recognize that a judicial solution does not exist, and that the Court should declare all claims related to political (but not racial) gerrymandering nonjusticiable.

Similarly, during oral argument last October in Gill, Chief Justice John Roberts suggested that the Supreme Court should stay out of the case, at the risk of the Court’s “status and integrity.”

2. How will Justice Kennedy vote (again)?

The key vote in these cases likely will be cast by Justice Anthony Kennedy. Fourteen years ago in Vieth, Justice Kennedy agreed that the Supreme Court should stay out of the case, but held open the possibility that courts could play a role in reviewing partisan gerrymandering cases if a workable standard could be found. The justice’s decisions in Gill and Benisek could rank as among his most important and once again reflect his decisive role on the Court.

3. So, how exactly do you measure partisan gerrymandering? If limits on partisan gerrymandering are set, what comes next?

Redistricting has been challenged most frequently on the basis of “efficiency gap” analysis, based on the concept of “wasted” votes in an election over a sustained period of time. But criticism of partisan gerrymandering doesn’t necessarily lend itself toward fixing it, some political analysts have suggested. “Gerrymandering is a really easy practice to condemn and a really complex problem to solve. And just as there are no permanent majorities in American politics, there may never be such a thing as a perfect map,” says David Wasserman, House editor for the Cook Political Report and a contributor to the Gerrymandering Project at Fivethirtyeight.com.


Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer.
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