The U.S. Supreme Court made headlines Monday with its acceptance of a case that argues whether legislative maps can be ruled unconstitutional simply due to the partisan advantages that may be gained from their designs. Some election law experts contend the matter is a means to an end in transferring redistricting powers—commonly held in legislative branches—to commissions not directly answerable to the electorate.
Picking up the case after a three-judge panel ruled that Wisconsin Republicans re-drew legislative boundaries in 2010 with the intent to dilute opposition voting strength, the Supreme Court paused the lower court’s immediate remedy that maps be reconfigured in time for the 2018 Election prior to the 2021 revamp. Court watchers of all varieties, including proponents of the lawsuit, took the halt as an early indicator that some left-wing groups’ hopes for a new weapon against largely Republican legislatures may not be handed down any time soon.
Redistricting litigation is by no means a rarity, regardless of how far removed a case may be from the last decennial census or even if the boundaries are actually enforced at the time. Conventional scenarios allege that particular political jurisdictions are drawn presenting risks or evidence of racial discrimination, violating the U.S. Constitution and the Voting Rights Act. Gill v. Whitford, however, offers a different framework that the Supreme Court has demonstrated great difficulty in tackling in the recent past. Rather than making a detailed, per-district case that specific boundaries were drawn to harm minority voters, Whitford makes a broad argument against Wisconsin’s legislative boundaries statewide, arguing that Republicans are impermissibly tipping the scales at the expense of Democrat voters. Some critics of such maps also admit that a racial undercurrent can exist with a partisan gerrymandering complaint. In response, Wisconsin has pushed hard against the allegations and seeks a landmark ruling that partisan gerrymandering claims are not justiciable.
The Supreme Court has been here before in 2004 thanks to a Pennsylvania case. The Court fractured on whether it should hear a partisan claim: Rehnquist, O’Connor, Scalia, and Thomas found the case was governed by the political-question doctrine and lacked proper jurisdiction; while Stevens, Ginsberg, Souter, and Breyer opted to proceed. Anthony Kennedy voted with the conservative bloc on the question of the Pennsylvania case’s hearing, but would not foreclose future challenges.
Typically a niche area even among the most dedicated politicos, redistricting has demonstrated improving headline-grabbing potential, especially as the Democrat Party continues to dedicate assets and architecture to chart a path out of the political wilderness. The Washington Post reported shortly after the court announcement Monday that former President Barack Obama would dedicate energy toward improving the party’s chances in the next mapping cycle. In addition, the National Democratic Redistricting Committee, chaired by former Attorney General Eric Holder and Clinton campaign alum Marc Elias promises “a comprehensive, multi-cycle Democratic Party redistricting strategy over the next 5 years and beyond.”
Instead of fighting for the civil rights of all voters like previously advertised in anti-voter ID campaigns, the Democrats make clear their intentions:
[T]he NDRC was created in 2016 to build a targeted, state-by-state strategy that ensures Democrats can produce fairer maps in the 2021 redistricting process. With fairer maps, Democrats can rebuild the party from the state level, and secure a stable federal majority for the decade to come.
Looking beyond Whitford, some election law experts note that left-leaning reform efforts are coalescing around the concept that removes legislators—and their constituents by extension—further from the redistricting process favoring of a commission approach like seen in a dozen states. Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Missouri, Montana, New Jersey, Pennsylvania, and Washington currently utilize such systems. The makeup of the bodies can range in size and placement mechanism—commonly relying on executive or legislative leadership to select participants.
Critics argue that a disconnect from the full wrath of the electorate is harmful.
“So-called independent commissions remove accountability–commissioners are not accountable to voters for what they do, unlike legislators,” says Hans von Spakovsky, a senior legal fellow for the Heritage Foundation. “Commissioners just move the politics of redistricting behind closed doors.”
Experts commonly note that the electoral yields of a map are not neatly predetermined by the political affiliation of its architect. Both the 2006 “Thumping” and 2010 “Shellacking” Elections occurred on largely the same body of legislative maps. Real redistricting reform, some argue, happens in the ballot box.
“If you don’t like the partisan results in a redistricting plan passed by a legislature, go out and win more seats,” Public Interest Legal Foundation President J. Christian Adams explains. “The people should have the power to form their own legislative system and that should not be delegated to bureaucrats and commissions just because we don’t like the outcome.”
The Supreme Court recently waded into the redistricting wars in 2016 with a Texas case, Evenwel v. Abbott. Though not regarding any specific political boundaries, Evenwel sought a ruling that would prevent jurisdictions be drawn based on the total population of residents; opting instead for lines based on citizenship data or registered voters. Plaintiffs argued that current practices gave densely populated areas a political subsidy of added representation thanks to the counting of noncitizens and others not eligible to vote. The sans-Scalia court ruled unanimously against the plaintiffs, though Justice Clarence Thomas noted in a concurring opinion that it was not the Court’s place to weigh in on such matters—a sentiment that might be repeated in Whitford soon.