Will the Court Kill the Gerrymander?

On Tuesday, a panel of federal judges struck down North Carolina’s congressional map, ruling it an unconstitutional partisan gerrymander. State Republicans had drawn district lines with such ruthlessness that they had won ten out of thirteen seats in the 2016 election—77 percent—even though they got only 53 percent of the vote. GOP lawmakers, wrote Judge James Wynn Jr., had been “motivated by invidious partisan intent.”

Republicans had openly admitted as much. “Nothing wrong with political gerrymandering,” declared one of the lawmakers leading the process at a 2016 hearing. “It is not illegal.” The GOP is likely to appeal Tuesday’s ruling to the Supreme Court on those grounds.

Whether courts are empowered to block partisan gerrymanders—as opposed to gerrymanders involving racial discrimination, which just about everyone agrees are unconstitutional—is a question the justices considered in October when they heard Gill v. Whitford, a challenge to Wisconsin’s state assembly map. The fate of North Carolina’s map likely hangs on how the court decides Gill. A ruling is expected before the end of June.

There’s much more at stake, too. An opinion in Gill that significantly reduces partisan gerrymandering could radically reshape the redistricting process for this decade and the next, with major implications for the fight to control both Congress and state legislatures. But it also could help fix America’s increasingly embattled democracy.

Gill and the enormous gerrymander from which it emerged underscore how the justices’ failure to act when they last had the chance, over a decade ago, has warped American electoral politics almost beyond recognition. Essentially, it has allowed Republicans to turn the last three elections for Congress and many statehouses into a strange simulacrum of competition, in which the parties compete vigorously for votes even though GOP control has often been all but assured from the outset. At stake in Gill, ultimately, is the question of whether election outcomes can be made once again to provide at least a rough reflection of the popular will.

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States must redraw their congressional and state legislative maps after every census, which takes place in the first year of each decade. Before the 2010 mid-term elections, Republicans poured resources into the battle for control of important state legislatures in order to gain power over the redistricting process that would follow. They emerged with full control of state government in crucial redistricting battlegrounds like Florida, Texas, Ohio, Virginia, North Carolina, Pennsylvania, Michigan, Wisconsin, and Alabama.

Then, they set about rigging the maps. American political parties have been drawing district lines in their favor at least since Massachusetts Governor Elbridge Gerry’s famous 1812 map, which aimed to boost his Democratic-Republican Party and included the notorious salamander-shaped district from which the term “gerrymander” derives. But by 2011, Republican map-drawers had access to software exponentially more sophisticated even than that used by states like Pennsylvania a decade earlier. This allowed them, with unprecedented precision, to distribute Republican voters more efficiently than Democratic ones. They did so by grouping Democratic voters together into a small number of ultra-safe districts with clear Democratic majorities (it helped that Democrats already tend to cluster in cities), while creating a much larger number of districts that leaned Republican—by less extreme margins than the Democratic ones, but still by enough that the GOP was largely assured of winning them.

In the next election, in 2012, Democratic candidates for Congress won more votes than Republican candidates in Pennsylvania, North Carolina, Michigan, and Wisconsin, yet in all those states the GOP came away with more House seats. (In Pennsylvania, Republicans won thirteen out of eighteen seats with less than 49 percent of the vote.) Nationwide, Democrats won 1.4 million more votes in congressional races than Republicans, but came away with thirty-three fewer seats. Stated bluntly, voters in 2012 wanted a Democratic Congress but got a Republican one, with the result that President Barack Obama’s legislative agenda was stymied for two more years of his presidency than it would have been in a system that accurately reflected voters’ collective preferences. In the two elections since then, Republicans’ share of seats has again significantly exceeded their share of votes in both congressional and state legislative races.

Now, with President Trump deeply unpopular, Democrats are expected to pick up seats in the mid-term elections of November 2018. But thanks to the rigged map, analysts say, they’ll need to win about 55 percent of the vote nationwide to carry a majority of House seats in Congress.

Besides clearly thwarting the will of voters, the Republican gerrymander has reduced the number of competitive districts, contributing to declining turnout as would-be voters come to feel, often with reason, that their voices don’t matter. And there is evidence that it has contributed to the growing extremism of the Republican congressional caucus by creating so many safe Republican seats, whose holders have more to fear from a primary challenge than from the general election.

This manipulation has felt particularly threatening to the integrity of US democracy because it’s only one way among several in which the right to meaningful political participation for ordinary Americans is being undermined. Over the last decade, extreme gerrymandering has coincided with state-level voter suppression laws that have largely targeted minorities and marginalized groups; with the evisceration of campaign-finance laws, giving outsized influence in elections to corporations and the super-wealthy; with the violation of longstanding congressional norms, which saw, for example, the Senate fail to vote on Merrick Garland’s Supreme Court nomination; and even with the growing significance of the Electoral College, which twice in the last five presidential elections has handed the White House to the candidate who lost the popular vote. Together, these trends have threatened to create a sense that America’s democratic system is dangerously unable to fulfill its prime function of translating the preferences of voters into political and policy outcomes.

Back in 2004, the Supreme Court heard Vieth v. Jubelirer, a challenge to Pennsylvania’s congressional map, through which Republicans had essentially guaranteed themselves at least 60 percent of congressional seats for the next decade, even if Democratic candidates got more votes statewide. The map rendered the will of Pennsylvania’s voters irrelevant.

The court’s four liberal justices voted to strike the map down as an unconstitutional partisan gerrymander. The four conservatives voted to uphold it, saying that finding a legal standard to determine when a partisan gerrymander goes too far is impossible. Justice Anthony Kennedy was the swing vote, and in the end, he did what he often does: he sided with the conservatives while seeming to throw the liberals a bone. Kennedy said it might still be possible to come up with a legal standard for partisan gerrymandering in a future case. But he rejected the standard used by the plaintiffs in Vieth as arbitrary, and so upheld Pennsylvania’s map.

Since then, legal scholars, political scientists, and statisticians have been developing a standard for identifying unconstitutional partisan gerrymanders that will satisfy Kennedy. Gill uses a standard that, gerrymandering opponents hope, may finally convince Kennedy to vote in their favor: the efficiency gap. Developed by Nicholas Stephanopoulos, a law professor at the University of Chicago who was among those representing the Gill plaintiffs, and the political scientist Eric McGhee, the efficiency gap compares each party’s number of “wasted” votes—that is, votes that went to a losing candidate, or that went to a winner but weren’t needed for victory. The larger the gap between the two parties’ total number of wasted votes, the greater the advantage the map gives one party.

Wisconsin Republicans drew their most recent maps during a snow storm in February 2011. They did so not in the state capitol building in Madison, but across the street in the conference room of a friendly law firm—the better to invoke attorney-client privilege and shield the process from public scrutiny. The result was roughly comparable to the Pennsylvania congressional map that Justice Kennedy had reluctantly approved in 2004. Even though Democratic candidates for the Wisconsin assembly got more votes than Republicans statewide, the GOP wound up with five out of eight House seats in the 2012 election. 

“There is close to a zero percent chance that the current plan’s efficiency gap will ever favor the Democrats during the remainder of the decade,” said Stephanopoulos and McGhee of the Wisconsin assembly map, in a calculation cited by a federal district court.

During oral arguments, the Supreme Court’s four most conservative members did not sound convinced. Justice Neil Gorsuch likened the formula for the efficiency gap to his steak rub: “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.” Chief Justice John Roberts dismissed it as “sociological gobbledygook.” And, famously concerned about the court’s reputation, the chief justice fretted that intervening in a case with such clear partisan implications would be seen by “the intelligent man on the street” as an effort to help one party at the expense of the other, causing “very serious harm to the status and integrity of the decisions of this court.” (Why, despite the court’s conservative, Republican-appointed majority, this hypothetical intelligent man would be likelier to see partisan bias in a ruling to intervene, benefiting Democrats, than in a ruling not to, benefiting the GOP, was left unexplained. Maybe the man wasn’t as intelligent as Roberts thought.)

But Kennedy sounded much more open to the challengers’ view. While asking nothing at all of the plaintiff’s lawyer, he grilled Wisconsin’s solicitor general with tough questions that hinted he may see extreme gerrymandering as a violation of a voter’s right to freedom of association found in the First Amendment, of which he is famously protective.

Another development could also augur well for gerrymandering opponents. In December, the justices unexpectedly announced they would hear a second redistricting case, this one a challenge to a single congressional district drawn by Maryland Democrats. Why the court agreed to hear the Maryland case, which raises similar issues to Gill, isn’t yet clear. But several court-watchers, noting Roberts’s concerns about the court being seen as partisan, have offered a plausible theory: there may already be five votes for the plaintiffs in Gill, and the chief justice is more likely to join the majority in a decision that hurts Republicans if he knows the court has a chance to demonstrate its nonpartisanship by also striking down a district in Maryland that was drawn by, and favors, Democrats.

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A result along those lines could have almost immediate repercussions. It would boost the plaintiffs not only in the North Carolina case, but also likely in a challenge to Texas’s maps. But the real impact of a Supreme Court ruling would be felt when the next redistricting cycle begins, after the 2020 census. A clear statement by the court against partisan gerrymandering would empower lower courts to strike down the most egregious maps, and would probably also convince lawmakers and their map-drawers to act with more caution.

Even leaving Gill aside, there are signs that the upcoming redistricting cycle may not repeat the worst excesses of the previous one. For one thing, Democrats won’t be caught sleeping again. They’ve already launched an aggressive effort, led by former attorney general Eric Holder, to win control of the major redistricting battlegrounds in 2020, which would mean that fewer states than last time are likely to be under the one-party rule that ruthless gerrymandering requires. Holder’s group also plans to support efforts to have independent commissions take over the redistricting process.

In fact, in a supreme irony, Republicans may be about to experience the downside of extreme gerrymandering. In order to most efficiently distribute their voters, they created a large number of districts with slightly more Republicans than Democrats, while creating very few ultra-safe Republican districts, since doing so would have wasted Republican votes. That strategy made sense for most election years. But now, the expected Democratic wave in this year’s midterms could put in play all those weakly-leaning Republican districts. Some experts predict a “wave election,” in which Democrats could gain as many as seventy-five seats. The Republican gerrymander of earlier in the decade could end up making a Democratic resurgence even more powerful than it would otherwise have been.

Still, the GOP may attempt to politicize the upcoming census itself, on whose data redistricting relies. The administration is now looking to add to the survey a question about citizenship, which civil-rights advocates fear could chill response rates from non-citizens. Among other troubling results, that could lead to redistricting plans that reduce the power of minority communities and boost that of white ones. And for the Census Bureau’s top operational post, President Trump is reportedly considering Thomas Brunell, a Republican defender of gerrymandering who wrote a book entitled Redistricting and Representation: Why Competitive Elections are Bad for America.

Gill may lead to a fairer, more democratic redistricting process. But with Republicans doing all they can to maintain a hold on power as America’s demographics rapidly change, it’s unlikely to be the end of the story.