The Supreme Court hears oral arguments Tuesday for the redistricting case that could potentially reshape American politics as we know it: Gill v. Whitford. Maps have been drawn for political advantage since the late 18th century – not to mention, today’s technology has made it easier for lawmakers to draw districts with even greater precision. Partisan gerrymandering is a concept that has thrived through countless elections, and now it hangs in the balance of the court.
“Many Supreme Court watchers consider Gill v. Whitford to be the most important case of the term. About one-third of Congressional and state legislature districts will be affected by the court’s decision. It could have a major impact on the political landscape, and not just for upcoming elections,” said Lisa A. Tucker, JD, associate law professor in the Kline School of Law and expert on the United States Supreme Court.
Tucker and Tabatha Abu El-Haj, PhD, JD, also an associate professor of law at Drexel, and expert on the American political process– including the ways it is structured by constitutional law and the administrative state– explain below the concept of partisan gerrymandering and the potential impact of the Gill v. Whitford decision.
Q: What is partisan gerrymandering, and does it violate the constitution?
A: (Abu El-Haj) The U.S. Constitution requires the apportionment of all state and congressional districts by population according to the principle of one-person-one vote, after each constitutionally mandated census (i.e., every 10 years). Only the Senate is exempted from this requirement. A partisan gerrymander occurs when the party in the majority in the legislature draws those districts in order to give itself a disproportionate advantage in subsequent elections. This is possible because in many states, like in Pennsylvania, redistricting plans are adopted as statutes (and thus need only a majority vote in each house and the approval of the governor).
A partisan gerrymander — defined as the “excessive injection of politics” in the drawing of political districts with the intent to entrench one party in power — is unconstitutional. The debate in the current litigation is about whether this constitutional prohibition is one that is appropriate for courts to enforce. The last time this issue came before the Supreme Court in a case out of Pennsylvania named Vieth v. Jubelirer, five justices (including Justice Kennedy), held that courts could enforce this prohibition in principle, but Justice Kennedy indicated that he had yet to be persuaded that there was a way to determine when the Constitution had been violated in practice and, therefore, held that there had been no constitutional violation in the case.
The four justices he joined to reach that holding, argued by contrast that partisan gerrymanders are exactly the sort of constitutional territory that the judiciary must refrain from enforcing. In the jargon, they are non-justiciable because it is inappropriate for courts to adjudicate in an area when it is just not clear exactly when a constitutional violation occurs: How much partisanship is excessive? How do we know that the seat, or the legislature as a whole, won’t flip parties the next cycle? Moreover, this lack of clarity is particularly problematic because court interference in redistricting poses a significant intrusion into state sovereignty.
Q: In short, what questions does Gill v. Whitford raise?
A: (Abu El-Haj) The Supreme Court’s current position is that in the absence of a clear concept of what would constitute fair representation, it is impossible to call constitutional fouls. And for more than a decade the courts have not been calling constitutional fouls when it comes to partisan gerrymanders.
The plaintiffs in Gill v. Whitford are seeking to persuade the Court that even if it is difficult (maybe impossible) to determine what “fair representation” looks like, it is not that hard to determine what constitutes “unfair representation.”
Basically, Gill v. Whitford is a case in which the Republican legislators solicited maps “labelled ‘assertive’ and ‘aggressive’” in their partisan advantage; those same legislators asked the map makers to run simulations to show that these maps would hold up long-term; and it worked. In 2012, the Republican Party received 48.6 percent of the vote share for the WI Assembly and won 60 of the 99 seats. In 2014, the Republican Party received 52 percent of the vote share and won 63 seats.
Q: In Gill v. Whitford, the district court of Wisconsin entertained a statewide challenge to its redistricting plan without a district-by-district analysis. How did this notion take place, and what was its impact?
A: (Tucker) The plaintiffs in Gill V. Whitford went to court to argue that Democratic votes did not count as much as Republican ones. Although Democrats succeeded in winning the overall popular vote in Wisconsin, they did not win as many seats in the state legislature, due to the way the districts were drawn. The trial court found that politics were a deciding factor in how the districts were drawn, especially because new computer technology made possible a very granular analysis of voting patterns. Of course, the state disputes that, saying that the legislature took many factors into account.
Q: Who shapes district lines? And what restrictions currently face them in doing so?
A: (Tucker) In most states, it’s the state legislature. That means that the party in control of the state legislature also gets to draw the lines, likely to its own benefit. There are restrictions. For example, every district should have the same number of voters — that’s the concept of “one person, one vote.” The Voting Rights Act restricts the use of race in redistricting, but the law in this area is evolving. You’re supposed to use race as a plus factor to make sure minority communities are represented. Other restrictions are established by state law or constitutions.
Q: What states might see a major shift in party representation if the Supreme Court votes that partisan gerrymandering claims are justiciable?
A: (Abu El-Haj) Partisan gerrymanders, as one might expect, are most likely to occur in states with unified government (one party controls all three branches: such as Iowa, Kentucky and Missouri) and in “swing states” where there are a mix of voters and, thus, each party has a strategic interest in preventing the democratic process from unfolding naturally.
States such as Pennsylvania, Wisconsin, North Carolina, and Ohio could be greatly affected by the Supreme Court’s decision.
Q: Are there any benefits of partisan gerrymandering?
A: (Tucker) It only benefits incumbents, so that they can retain their positions. Incumbents are drawing safe districts for themselves in which candidates from the other parties can’t beat them.
Q: In what ways would drawing districts change depending on the decisions of the Supreme Court?
A: (Abu El-Haj) If the court determines that partisan gerrymanders are not justiciable or just keeps its current holding pattern, we can expect more and more effective partisan gerrymanders with the next redistricting process because the technology for sorting and predicting voters is getting better and better. This is particularly problematic since the next round of redistricting, even in the best-case scenario, is likely to be fraught: The Trump administration is not devoting the appropriate resources to the census. Fair representation is impossible without an accurate census—i.e., one that accounts for everyone in the country—including those who are more difficult to find (transient populations, minority populations, immigrant populations).
A: (Tucker) The court’s decision might put limits on how much the line drawers can consult political records. You’re more likely to have districts that are contested in the general election. Office seekers will need to do more work pleasing the center than pleasing their party’s base.
The issue of partisan gerrymandering does not halt following Gill v. Whitford. Abu El-Haj explains, there is currently a challenge to Pennsylvania’s congressional districts as a partisan gerrymander.
This case, which has been brought by the Public Interest Law Center of Philadelphia (and which has a big hearing this week) asserts largely state constitutional violations. The Pennsylvania Constitution is more generous with respect to the right to vote, said Abu El-Haj.
For instance, voter-identification laws were held to be unconstitutional in Pennsylvania (not under federal law). This means that even if the Supreme Court hold partisan gerrymanders to be non-justiciable, Pennsylvanian’s could still get fair elections from the Pennsylvania Supreme Court, at least with respect to Congress.
Any media interested in speaking to Abu El-Haj or Tucker should contact Emily Storz at 215-895-2705 or els332@drexel.edu
