Supreme Court to Hear Case Regarding Constitutionality of Partisan Gerrymandering

Last week, the Supreme Court announced it would hear Gill v. Whitford, a case regarding whether it is constitutional for lawmakers to gerrymander Congressional districts to advantage their own political party. The term “gerrymandering” refers to the redrawing of legislative districts in order to achieve a balance of voters that will elect a specific kind of candidate.

The Gill v. Whitford case originated in Wisconsin. In the first statewide election after Wisconsin Republicans redrew the state’s legislative map in 2010, Republicans won just over 48.6% of the statewide vote but received 60 of the 99 seats in the state assembly. Based on that evidence, federal judges ruled that the 2010 Wisconsin redistricting plan violated the First and Fourteenth Amendments because it gave a clear electoral advantage to Republican candidates.

The lower court ruling on Gill v. Whitford marked the first time in 30 years that a federal court had ruled a partisan gerrymander unconstitutional. In the past, the Supreme Court has struck down gerrymandering schemes that sought to minimize the voting power of racial minorities. But the Court has never before called into question the constitutionality of partisan gerrymandering.

The Court ruled on Monday to stay the lower court’s decision in Gill v. Whitford until it can reach a final verdict on the case. If the Court upholds the lower court’s ruling, it could dramatically alter up to a third of the U.S. legislative map.

The Gill v. Whitford case is also significant because it introduces a new element to the conversation surrounding partisan gerrymandering; the challengers in the case have devised a method that they say can determine if a district has been gerrymandered specifically for partisan reasons. This method involves calculating the number of so-called “wasted votes” created by a gerrymander. Votes can be “wasted” in one of two ways. In some instances, many members of one party are placed in a single Congressional district. This means that even if members of that party form a vast majority of that district’s electorate, they only have the chance to elect a single representative. Alternatively, when members of one party are spread across many districts, their votes are wasted because it is impossible for them to achieve a majority in any of those districts.

Justice Anthony Kennedy is likely to provide the swing vote in Gill v. Whitford. He has expressed in previous cases that partisan gerrymandering could potentially be ruled unconstitutional if there was a workable method to determine if a gerrymander was created for partisan or for other reasons. It remains to be seen whether the method created by the challengers in Gill v. Whitford is considered a workable standard for pinpointing when partisan gerrymandering is present.

Partisan gerrymandering has been common practice for American lawmakers since the early nineteenth century. But many legislators, pundits, and legal experts have criticized the practice, arguing that it robs voters of political voices. According to Trevor Potter, the president of an organization of legal experts part of the team representing the plaintiffs in Gill v. Whitford, partisan gerrymandering is anti-democratic because it allows legislators to “choose their voters” instead of the other way around.

Media Resources: New York Times 6/19/17, 9/25/10; Washington Post 6/19/17; New York Times’ “The Daily” 6/20/17; BBC 6/20/17; The Hill 6/19/17

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