“The politicians are never going to fix gerrymandering,” Paul M. Smith, an attorney for the Campaign Legal Center, told the justices. “You are the only institution in the United States that can solve this problem.”
Wisconsin Democrats say the 2011 Republican legislative map violated the First Amendment by punishing them for their political beliefs and violated the 14th Amendment’s equal protection clause because it intended to dilute Democratic votes but not Republican ones.
The Supreme Court has ruled that racial gerrymandering is unconstitutional in many cases, but it has never done so for partisan gerrymandering. It would open up a whole new line of attack on redistricting plans, which judges already scrutinize for racial discrimination and many other factors.
One of the reasons the justices have been so reluctant to weigh in on the issue is that they had no good way to gauge how “partisan” a redistricting plan is. But Smith and many voting rights advocates say there are several tools judges can use to make that determination.
Social scientists have come up with several mathematical formulas that show how much maps tilt in favor of one party or the other. Those tools, Smith says, can help courts determine whether a redistricting plan violates the rights of voters in the minority party.
The case comes at a crucial time. Every state will have to redraw their legislative maps after the 2020 Census, and whatever the high court does in the Wisconsin case could have a major impact on that process. The court’s decision could curtail partisan abuses or, Smith warned, the court could encourage partisans to go even further next time if it doesn’t strike down the Wisconsin map.
Several Supreme Court justices indicated that they, too, are frustrated by naked partisanship in the redistricting process, but Chief Justice John Roberts expressed concerns about the impact that striking down the Wisconsin map would have on the Supreme Court.
Unlike appeals in most other types of cases, redistricting cases automatically end up on the Supreme Court docket. If the court followed Smith’s suggestion to use social science to determine how skewed maps are in favor of one party, Roberts said ordinary people likely wouldn’t understand it, and it would make it seem as if the court itself were playing politics.
“We would have to decide in every case whether the Democrats win or the Republicans win,” the chief justice warned. “That is going to cause very serious harm to status and integrity of this court in the eyes of the country.”
Wisconsin Solicitor General Misha Tseytlin, the lawyer defending the Wisconsin maps and the GOP lawmakers who drew them, argued that the tools make things more convoluted by comparing actual maps to other possibilities.
“Plaintiffs are asking the court to launch a redistricting revolution,” he said. “You'll have federal courts engaging in battles of hypothetical experts.”
Other justices expressed concerns about the mathematical formulas themselves.
Justice Samuel Alito, a conservative like Roberts, said one of the tools touted by the plaintiffs -- the “efficiency gap" -- is new and not well-vetted. The empirical measures, he added, might not take into account legitimate motivations by state legislators, including protecting incumbents or obeying the Voting Rights Act.
“If we are going to impose a standard on courts, it has to be manageable,” Alito said.
But Justice Stephen Breyer, a member of the court’s liberal bloc, suggested that the court could set up a relatively simple set of tests to determine whether political parties went too far in pushing their advantage with new redistricting plans.
First, they could see whether one political party controlled the redistricting process. If so, courts could see whether the maps treated both parties similarly, so that a party that won the majority of votes in legislative races would win control of the legislature. (In Wisconsin's case, Democrats won a majority of votes in Assembly races in 2012, but Republicans won 60 of the chamber’s 99 seats.) Then, they would determine whether that pattern persists over time or occurs under simulations of many different voter turnout scenarios. Then, they could determine if the partisan advantage under the map was particularly extreme. Finally, they would see whether the plan’s designers had any other justification for the lopsided results.
That set of tests would likely limit the number of maps struck down for being too partisan, Beyer said. “I suspect that’s manageable.”
Justice Elena Kagan, a liberal, also asked about what thresholds the court should set so that not every redistricting case would lead to a challenge.
“What’s that line?” she asked. But, she added, “it seems [Wisconsin's] map has gone over every line.”
The hearing drew a lot of attention, particularly for a redistricting dispute. Seating in the courtroom was shoulder-to-shoulder, and a raucous crowd chanted outside while carrying signs with slogans such as “Equal districts under the law” and “Let every vote count.”
Former California Gov. Arnold Schwarzenegger, who led efforts to move California’s redistricting process to a nonpartisan commission, drew a phalanx of photographers. He told reporters that politicians didn’t respond to many looming crises in the country because partisan redistricting kept their jobs safe.
The court is expected to issue a ruling in the case by the end of June.