California Forum

The system is rigged, and the Supreme Court could fix it. Will justices do the right thing?

Back from its summer recess, the Supreme Court will hear arguments this week in a challenge to partisan gerrymandering in Wisconsin. California’s electoral districs are drawn by a nonpartisan committee, but most states still let the party in power determine district boundaries, a method that can be, and often is, abused. (Olivier Douliery/Abaca Press/TNS)
Back from its summer recess, the Supreme Court will hear arguments this week in a challenge to partisan gerrymandering in Wisconsin. California’s electoral districs are drawn by a nonpartisan committee, but most states still let the party in power determine district boundaries, a method that can be, and often is, abused. (Olivier Douliery/Abaca Press/TNS) TNS

The Supreme Court has the opportunity to dramatically improve the political process in the United States by ending partisan gerrymandering. On Tuesday, the Supreme Court, just back from its summer recess, will hear arguments in Gill v. Whitford and consider whether partisan gerrymandering violates the Constitution.

Partisan gerrymandering — where the political party controlling the legislature draws election districts to maximize seats for that party — is nothing new. In fact, the practice is named for Massachusetts Gov. Elbridge Gerry, who in 1812 signed a bill that redrew the state Senate election districts to benefit his Democratic-Republican party.

Democracy involves voters choosing their elected officials, but partisan gerrymandering has elected officials choosing their voters.

But what has changed are the sophisticated computer programs that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts with precision to ensure a disproportionate number of safe seats for itself.

Both Democrats and Republicans do this when they are in the majority in a state legislature. Because of voter initiatives, California is among a minority of states that has eliminated partisan gerrymandering by having independent commissions draw election districts.

Gill v. Whitford arose in Wisconsin, where Republicans took advantage of their control of the Legislature to give themselves a disproportionate number of seats relative to their voting strength. The Republicans employed two gerrymandering techniques to lessen the effect of votes for Democrats statewide: “cracking” — described in the suit as “dividing a party’s supporters among multiple districts so that they fall short of a majority in each one” — and “packing” — “concentrating one party’s backers in a few districts so that they win by overwhelming margins.”

The gerrymandering worked. In 2012, the Republicans won 61 percent of Assembly seats with 48.6 percent of the statewide vote. This is typical of what occurs in many states. In North Carolina, Republicans received a slim majority of the votes cast for the state legislature, yet through gerrymandering were able to give themselves a supermajority of both houses.

Partisan gerrymandering is inconsistent with basic principles of democratic government, as well as constitutional guarantees of equality in voting. It allows a party that wins a minority of the votes cast for the legislature to end up with a significant majority of the seats. Democracy involves voters choosing their elected officials, but partisan gerrymandering has elected officials choosing their voters.

In Vieth v. Jubelirer, in 2004, the court, in a 5-4 decision, dismissed a challenge to partisan gerrymandering in Pennsylvania. Then-Justice Antonin Scalia wrote for four justices in the majority and said that courts should not adjudicate challenges to partisan gerrymandering because there is no way to decide when the practice is unconstitutional.

Justice Anthony Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the lack of judicial standards, but he said that he believed that such standards might be developed in the future.

It is in this context that Gill v. Whitford and the challenge to Wisconsin’s gerrymandering is enormously important. A three-judge federal court said that it now is possible to measure the effects of partisan gerrymandering by quantifying an “efficiency gap.” The court explained that “[t]he efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.”

The court applied this through a three-part test: First, plaintiffs have to establish that a state had an intent to gerrymander for partisan advantage. Second, the plaintiffs need to prove a partisan effect, by proving that the efficiency gap for a plan exceeds a certain numerical threshold.

Third, and finally, if the plaintiffs meet these requirements, then the burden is on the defendants to rebut the presumption by showing that the plan “is the necessary result of a legitimate state policy, or inevitable given the state’s underlying political geography.” If the state is unable to rebut the presumption, then the plan is unconstitutional.

The three-judge court used this test and concluded that the election districts for the Wisconsin Legislature were drawn with the purpose and effect of enhancing Republican seats and decreasing those for Democrats. The court found no legitimate purpose for this disparity and found the partisan gerrymandering to be unconstitutional.

The Supreme Court should affirm this decision and put an end to partisan gerrymandering. The democratic process would be greatly improved if election districts are drawn in a fair and neutral manner.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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