Supremes Take Case That Could Fundamentally Reshape Congress

Pounded in recent elections, Democrats ask court to set new limits on political gerrymandering

by Brendan Kirby | Updated 20 Jul 2017 at 7:16 AM

The Supreme Court on Monday agreed to hear a case that could fundamentally change the way states draw political boundaries.

In recent years, the courts have taken a harder line against creating overwhelmingly minority state legislative and congressional districts, diluting that strength of minorities overall. But the courts traditionally have declined to wade into disputes involving partisan redistricting.

Enter Wisconsin.

A three-judge panel last year ruled 2-1 in favor of a dozen Democratic state representatives in Wisconsin, who argued that the Republican-controlled redistricting following the 2010 census improperly favored Republican candidates.

As evidence, they pointed to the results of the 2012 election, when Republican legislative candidates won 48.6 percent of the two-party vote but claimed 61 percent of the General Assembly's 99 seats.

It is unclear how the high court might rule on the case, but some experts noted that current precedent prohibits judges from intervening in map-making disputes based on partisan politics.

"It's a very important case, and I think the Supreme Court is taking the case to reverse the lower court decision," said Hans von Spakovsky, manager of The Heritage Foundation's Election Law Reform Initiative. "They're violating Supreme Court precedent."

The high court set that precedent in 2003 in a case called Vieth v. Jubelirer, which challenged Pennsylvania's redistricting. The justices ruled that political gerrymandering disputes were outside the scope of review by the courts.

Von Spakovsky questioned how the courts could lay down objective rules that would let legislatures and judges know which maps passed constitutional muster and which went too far.

"There is just no way you could come up with a recognizable standard," he said.

The plaintiffs likely will target Justice Anthony Kennedy, who voted with the majority in the Pennsylvania case but wrote separately to express his view that devising a standard might be possible.

"This case has been designed from the outset … to devise a standard the Justice Kennedy and others can follow to say whether maps are OK," said Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison.

Political scientists call that standard the "efficiency gap," which measures how many seats a party should win based on its overall voting strength.

"I think even some of the liberal justices realize that if they open the door to this, they'll be flooded with lawsuits."

Burden said the court could adopt a range — say plus or minus 7 percent — that would be acceptable.

"There is some arbitrariness to it," he said.

But von Spakovsky said the court would be playing with fire if it opens up that can of worms. He said he believes the high court will overturn the lower court ruling, perhaps by a margin wider than 5-4.

"I think even some of the liberal justices realize that if they open the door to this, they'll be flooded with lawsuits," he said.

Tom Fitton, president of Judicial Watch, urged the Supreme Court to overturn the lower court.

"Leftists want the courts to overturn district lines if not enough Democrats win," he said in a statement. "We're happy that the Supreme Court will now have a chance to rule that Democrats — or any political party — will not have a constitutional right to win elections."

Burden said the case is "hugely important" because it could for the first time set a standard limiting the ability of the party in power to draw maps to perpetuate its majority. He said political science research has indicated that gerrymandering in the current Congress boosts Republican representation in the U.S. House of Representatives by anywhere from three or four seats on the low end of estimates to as many as 20 to 25 on the high end. (go to page 2 to continue reading)

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