Now that the 2016-17 U.S. Supreme Court term has sputtered to a stop, let’s reflect on the justices’ most important decision of the year. It’s not a case in which the court issued an opinion, but rather one in which it has merely agreed to hear arguments.
The most consequential decision the court made this last term was to hear arguments in a case involving the drawing of legislative district lines. Please don’t yawn. This process of drawing district lines, called redistricting, dictates who our state and federal representatives will be.
Decisions regarding how we draw district lines implicate every important policy issue, from health care and immigration, to the environment and criminal justice. Because of partisan gerrymandering, many Americans don’t chose their lawmakers. Their lawmakers chose them.
First thing is first. What is partisan gerrymandering? In a hypothetical state called Zog, 55 percent of the registered voters are members of the Zogian People’s Party. They ought to win about 55 percent of the Zogian legislative seats, right? But they don’t. They win 75 percent of the seats because Zogian People’s Party leaders cleverly drew the district lines to ensure legislative victories beyond their numbers.
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This is about what happened in Wisconsin when Republicans drew the district lines in 2011, and it’s the reason why the Supreme Court could decide whether or not those district lines are illegal. What happened in Wisconsin has occurred in many, if not most, states where politicians bend lines in ways that help incumbents or members of the party in power.
Few things are more political than redistricting, and you can never remove politics from politics. Politicians are pre-disposed to protect themselves and their allies. But at some point, politicians will overreach, and draw lines that hinder the ability of members of the minority party to pick the candidates of their choosing.
Legislators can do this by packing voters into one or a few districts so that they cannot exert their power in a greater number of districts, or by cracking voters into too many districts so that they can never attain a critical mass to elect candidates of their choice.
Here’s a fun fact: The Supreme Court has never defined what makes a redistricting plan impermissible partisan gerrymander. That needs to change. The nation is in desperate need of a standard to determine when partisan gerrymandering goes too far.
Conventional wisdom, which is likely correct in this case, would indicate that the Supreme Court is divided on the issue of whether justices can even decide whether redistricting plans are impermissible partisan gerrymanders. If they can, it’s not clear what standard should be applied to those claims.
As is the case with so many other legal issues, Justice Anthony Kennedy will likely cast the tie breaking vote.
In the Wisconsin case, a lower court found that Republican lawmakers impermissibly gerrymandered the state on a partisan basis and ordered them to draw new district lines before the 2018 elections. But on a 5-to-4 vote, with conservatives –in the majority, the high court stayed the lower court decision. Kennedy joined the conservatives.
That’s discouraging for those of us who hope Kennedy would join with liberal justices on this preliminary issue. But justices can and do shift based on the weight of arguments presented.
California is an exception, thanks to voter-approved initiatives that created an independent redistricting commission to draw legislative and congressional lines. But as in fictional Zog, all-too-real Wisconsin and most other states, politicians choose their voters. That marginalizes great swaths of the electorate.
Gerrymandering is one of the greatest problems facing our democracy today. The court’s decision to resolve this issue could have implications for decades regarding who holds political power in state houses and in Congress.
Editor's note: This story has been updated to correct the calendar year of the term.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is president of the Los Angeles Ethics Commission. She tweets at @LevinsonJessica and can be contacted at Jessica.Levinson@lls.edu.