Justices sidestep partisan redistricting

Partisan gerrymandering is alive and well after the United States Supreme Court opted not to issue a decision in pivotal cases from Wisconsin and Maryland. The majority of the Court rejected the more extreme views of Justices Thomas and Gorsuch, and the vast majority of justices appear to make clear that they are open to finding extreme partisan gerrymandering unconstitutional. The ruling sent the case back to a lower federal court for further proceedings. But the rulings don’t touch on the key issue, whether it’s legal to redraw districts to give an unfair advantage to a political party.

Those trying to change Wisconsin’s state lines explained to justices in October that the Republican-drawn lines violated their constitutional rights to equal protection.

Roberts said the court was remanding the dispute to the trial judge “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence-unlike the bulk of the evidence presented thus far-that would tend to demonstrate a burden on their individual votes”.

“In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request”, the Court’s unsigned opinion said. For instance, the lead plaintiff, a Democrat, lived in a district including Madison that would perform well for Democrats even under a less-gerrymandered map. In 2012 the party won less than half the vote for the Assembly but still got more than 60 percent of the seats.

That talk receded, but Republicans have brought forward another plan that could limit the lifespan of the court’s Democratic majority: changing the state’s constitution to elect appellate court judges in districts, rather than in statewide elections.

The US Supreme Court is seen after the court revived Ohio’s contentious policy of purging infrequent voters from its registration rolls, overturning a lower court ruling that Ohio’s policy violated the National Voter Registration Act, in Washington, US, June 11, 2018.

Maryland Democrats are defending the redrawing of the 6th District, which includes the westernmost part of the state. The justices are wary of setting a permanent rule for redistricting if voters can be impermanent in how they vote. Like the example above, Democrats could do nearly anything they wanted – the negative reaction to Obamacare in 2010 would have left Democrats with full control of Congress to continue with the agenda. In the Wisconsin case (Gill v. Whitford), though, the court ruled the plaintiffs lacked appropriate standing.

For an example of those weird contours, take a look at Ohio’s 9th District, nicknamed “the snake on the lake” for the way it stretches from Toledo to Cleveland.

Alternatively, states could move to fully outsource the redistricting process to tech firms capable of creating dozens or hundreds of different maps based on relatively simple sets of parameters-such as requirements that districts score below certain thresholds on different measurements. Republicans now control 2/3 of state legislatures, and in many battleground states – those that have been ground zero in extreme partisan gerrymandering – Republicans have a stranglehold on power, controlling both chambers of the state legislature and the governor’s seat.

The Supreme Court said the lower court must reconsider that case so the plaintiffs can make a more detailed argument about how the districts impacted their civil rights.

Wisconsin Attorney General Brad Schimel said he was “pleased that the highest court in the land has unanimously reversed the trial court’s erroneous decision invalidating Wisconsin’s Assembly map”.

“Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted”, wrote Chief Justice Roberts.

One reason that might happen this time touches on the procedural issue that prompted the court’s punt of the Wisconsin case. The Supreme Court has a standard limiting the overreliance on race in map-drawing, except under the most limited circumstances.

“This Court has explicitly recognized the relevance of such statewide evidence in addressing racial gerrymandering claims of a district-specific nature”, Kagan wrote in reference to the court’s decision in Alabama Legislative Black Caucus v. Alabama (2015). Worse still, it creates an unnecessarily partisan path to challenging statewide maps. Redistricting software enables whichever party controls a statehouse to capture every bit of partisan advantage, she wrote, helping entrench the party in power, irrespective of voters’ true preferences.