A decision by the United States Supreme Court today has the potential to radically alter the American political landscape. It’s not an opinion, but merely the court’s announcement that it will hear the case of Gill v. Whitford.
The case concerns Wisconsin’s state assembly map, drawn up in 2011, which dictates the constituencies of legislators in the state capital of Madison. In January of this year, a three-judge federal panel deemed that map unconstitutional, violating both the Equal Protection Clause and Wisconsinites’ First Amendment right to freedom of association. The court found that mapmakers were chiefly motivated by partisanship, drawing boundaries to maximize Republican representation, citing discord between ultimate seat count and statewide voting trends. Democrats won a popular majority of assembly votes in 2012 and 2014, but Republicans managed to take 60 of the 99 assembly seats.
“It is clear that the drafters got what they intended to get,” Judge Kenneth F. Ripple wrote in the majority’s opinion. “There is no question that [the map] was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
The state of Wisconsin filed an appeal in February, asking the Supreme Court to review the panel’s decision, claiming the current map adequately reflects the “reality of political geography” in the state.
The practice of redrawing electoral maps along partisan lines is known as “gerrymandering.” The Supreme Court has previously struck down gerrymandered maps that disadvantage minority voters, but has yet to prohibit a map on the ground that it unfairly advantages one political party over another.
“This will be the biggest and most important election law case in decades,” University of Kentucky law professor and election-law expert Josh Douglas told CNN. “However, the court rules will affect elections for years to come.”
The potential impact of Gill on American electoral politics centers on a Republican redistricting scheme called REDMAP (short for Redistricting Majority Project). Laid out in a 2010 op-ed written by Republican strategist Karl Rove for The Wall Street Journal, the plan aimed to flip state legislatures to Republican majorities, just as they were due for districting review in accordance with the census taken that year. Republican-dominated state legislatures could proceed to redesign electoral maps on their terms, optimizing prospects for Republican gains in Congress.
“He who controls redistricting can control Congress,” Journal editors wrote above Rove’s article. And so, Republican national organizations flooded local elections with funding for party candidates and advertising against Democrats. It worked. Republicans won majorities in 10 out of the 15 states due for redistricting.
“Republican strategists who created REDMAP and led these efforts would agree that they zeroed in on this plan after the Obama election gave Democrats total control in Washington,” David Daley, author of Ratf**ked: Why Your Vote Doesn’t Count, a book covering the story of 2010 and 2011 redistricting, tells Quartz. “Analysts looked at demographic trends and wondered if the Republicans would be a minority party for a generation.”
Republican majorities in those 10 state legislatures moved quickly to consolidate power. Electoral districts were designed to sustain Republican super-majorities, despite Democrats winning statewide popular votes. That seeped into federal legislative makeup—“purple” states, or states that are generally up for grabs by both parties, began looking increasingly red in Congress. There are 13 Republican delegates to 5 Democrats for Pennsylvania, 12 Republicans to 4 Democrats from Ohio, 9 Republicans to 5 Democrats from Michigan, 10 Republicans to 3 Democrats from North Carolina, and 5 Republicans to 3 Democrats from Wisconsin.
“It’s awfully hard for Democrats to make up ground in the House because these swing seats were so effectively redrawn by Republicans to pack Democratic voters into as few seats as possible,” Daley explains. “Or to efficiently crack them amongst as many as they could,” he adds, referring to the practice of diluting party voting blocs over several districts.
Gerrymandering, Daley says, has the added effect of entrenching representatives at the farther ends of the political spectrum: “When general elections are un-competitive, politicians fear only a primary challenge, so they become most responsive to the base and less interested in governing and compromise and working together.” He points to representative Mark Meadows of North Carolina as an example: Meadows’s seat has historically been in a swing-district, often represented by conservative Democrats. “Now, it sends one of the most conservative people in the House to office,” Daley says.
A ruling in Gill in favor of the plaintiffs would set a precedent defining unconstitutional redistricting—something that would undoubtedly stifle the long-term effects of REDMAP. But the Supreme Court has been loath, in recent decades, to settle on such a clear definition of gerrymandering beyond racial motivations.
Twice the court has failed to set a standard by which partisan gerrymandering claims might be adjudicated. In the 1986 case Davis v. Bandemer, it held that the Equal Protection Clause bars states from unfairly disfavoring political parties in redistricting, but failed to agree on a proper standard for invalid maps. Eighteen years later, in Vieth v. Jubelirer, the court deadlocked over whether it was within the authority of the judicial branch to even address partisan gerrymandering claims. Virtually no progress has been made since.
“Justice Kennedy has long expressed interest in a standard to measure partisan gerrymandering,” says Daley. The court is likely to break down along the same lines as Vieth, with the four liberals supporting identification of a standard, and four conservatives opposing.
“Kennedy is the swing vote,” Daley explains, referring to moderate conservative justice Anthony Kennedy. The Wisconsin plaintiffs in Gill appear to be betting on Kennedy’s potential friendliness to the cause, adopting a legal calculus court observers say may very well win them his vote. The so-called “efficiency gap” test measures the difference between the wasted votes of the two parties in an election divided by the total number of votes cast. Wasted votes consist of “surplus” votes and “lost” votes. Surplus votes are cast by voters packed into a district beyond what is necessary to elect a candidate from his or her party, and lost votes are votes cast for lost-cause candidates in party-dominated districts (generally cast where a party bloc has been “cracked” over several districts).
In an ideal election, the efficiency gap is close to zero. Each and every individual vote maximally counts. In 2012, the efficiency gap in Wisconsin was a high 13.3%.
While such an objective test may indeed endear Kennedy to the plaintiff’s case, rumors abound of the freewheeling justice’s imminent retirement. This would leave a vacancy on the court for president Trump to fill with a less compromising conservative, surely less amenable to judicial intervention in partisan gerrymandering claims. “If there is a standard to be established by the high court, the window seems to be closing,” Daley warns. “It may be now or never.”