WASHINGTON—Ever since the early 1800s, U.S. politicians have practiced gerrymandering, the long and dishonorable practice of lawmakers drawing legislative districts to entrench themselves and their party in power. And ever since the mid-1900s, the Supreme Court has ducked the issue of throwing out such crazy puzzles, unless the gerrymander was racially motivated.
Now it can’t.
That’s because the justices heard arguments on October 4 in Gill v Whitford, involving whether the extremely gerrymandered Wisconsin legislature deprives voters – and specifically those of the disadvantaged Democratic Party in Wisconsin – of their constitutional rights.
And, as might be expected, questions from several of the Republican-named jurists showed them seeking to preserve political gerrymanders. Meanwhile, the four Democratic-named justices said gerrymandering deprives voters of their right to vote and their right to freely associate politically with elected officials whom they choose to favor.
The case is important for everyone nationwide, not just workers and their allies. That’s because gerrymandered legislatures entrench not just themselves but members of the U.S. House along highly partisan lines for a decade or more.
State Republican lawmakers who benefit from gerrymanders then pass anti-worker and anti-consumer laws. Wisconsin’s GOP-dominated legislature and right-wing GOP Gov. Scott Walker virtually emasculated public worker unions in 2011, for example. The same thing happened in Iowa this year.
And gerrymandered GOP-run legislatures in Michigan and Missouri enacted so-called “right-to-work” legislation, a favorite cause of big business and the radical right, as a way to de-fund, degrade, and destroy unions. A 2018 referendum has delayed the Missouri law, for now.
All that was in the background – though unmentioned in the court — as the justices tackled the Wisconsin case, where the plaintiffs, Democratic voters, argued the districts are so skewed they are effectively denied their voting rights and their First Amendment freedom of association.
That shows up in Wisconsin elections, the Democratic voters argued: In the last two state legislative elections, the GOP won 48 percent, then 50 percent of the votes – and 63 of the 99 State Assembly seats. Five of the eight U.S. representatives are Republicans.
“What the state is asking for here is a free pass to continue using an Assembly map that is so extreme it effectively nullifies democracy,” said attorney Paul Smith, speaking for the Democratic voters from the state capital of Madison who challenged the district map.
“As this case illustrates, it’s now possible even in a 50/50 state like Wisconsin to draw a district map that is so reliably and extremely biased that it effectively decides in advance who’s going to control the legislative body for the entire decade… Their party has been punished by the law of the state of Wisconsin,” Smith said. Lower courts had agreed with the Democrats.
Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Steven Breyer appeared to agree with the Democratic voters, too. Chief Justice John Roberts and Justice Samuel Alito didn’t, while Justices Anthony Kennedy and Neil Gorsuch didn’t show their hands, but quizzed both sides. As usual, Justice Clarence Thomas said nothing at all.
Ginsburg asked Erin Murphy, the lawyer for the GOP-run State Senate: “If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it’s a Democratic district or a Republican district, using this map, the result is preordained in most of the districts. What becomes of the precious right to vote?
“Would we have that result when the individual citizen says: ‘I have no choice, I’m in this district, and we know how this district is going to come out.’ I think that’s something this society should be concerned about.”
Murphy replied there will always be voters in districts “where they know what the result is going to be. And that has nothing to do with partisan gerrymandering. It has to do with the geography of politics,” where Democrats are overly concentrated in cities and some suburbs.
Sotomayor was similarly skeptical. “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” she asked.
Sotomayor told Murphy her clients’ own brief admitted if the legislature openly wrote partisan political advantage into its state election law or its constitution, that might violate the U.S. Constitution. “It might be” unconstitutional, “but I don’t think that necessarily means that districting for partisan advantage has no positive values,” Murphy replied.
By contrast, Roberts raised the specter of having the courts draw legislative and congressional district lines every decade. Roberts didn’t like that and said so to Smith, the Democratic voters’ lawyer.
“We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board,” the Chief Justice told Smith. “And if you’re the intelligent man on the street and the” Supreme Court “issues a decision, and let’s say the Democrats win, that person will say: ‘Well, why did the Democrats win?’”
After listening to the explanation – that voters were packed into districts to deprive them of party competition statewide – “The intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state,” Roberts added. Smith replied the cases are being brought in state after state on those grounds now, anyway.
The justices will hand down a decision by June 30, 2018.
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