ShareThis Page

Gerrymandering & its political thicket

| Saturday, Sept. 30, 2017, 7:21 p.m.

WASHINGTON

On Tuesday, the Supreme Court will hear arguments tempting it to plunge into an impenetrable political thicket. It will consider a lower court's ruling that, if allowed to stand, will require the judiciary to determine whether and when partisanship in drawing electoral districts — something as old as the Constitution — is unconstitutional. And courts will wrestle repeatedly with cases requiring them to decide how to decide how much partisanship is too much.

It is instructive that the phrase “partisan gerrymandering” — the drawing of district lines by one party to disadvantage the other — is a redundancy. It has been since 1812, when Massachusetts Democrat-Republicans, serving Gov. Elbridge Gerry, created a district resembling a salamander. By then, the practice was old hat for New York, which had been hard at it since 1788, the year the Constitution was ratified.

The practice has recently become hotly disputed. This is partly because Republicans control 66 of 98 partisan state legislative chambers, and both the legislatures and governorships of 26 states. And it is partly because some members of the political science professoriate, which is as ideologically monochromic as academia generally, are inventing metrics that supposedly provide objective standards for identifying partisanship that is unconstitutionally excessive.

For decades, federal courts produced redistricting plans for Wisconsin after decennial censuses because the Legislature could not agree on any. In 2010, however, Republicans won control of both houses of the Legislature and the governorship and produced a redistricting plan. In 2012, they won 60 of the 99 state Assembly seats with 48.6 percent of the statewide vote, and in 2014 they won 63 seats with 52 percent of the vote. However, under the court-devised plan in the previous decade, in five elections the Republicans won an average of 55.2 seats with an average of 49.1 percent of the statewide vote. This is partly because under requirements of the Voting Rights Act, Milwaukee's “majority-minority” districts were protected. And it is partly because Democrat voters, in Wisconsin and nationally, are inefficiently distributed, disproportionately concentrated in cities and college towns, such as Milwaukee and Madison.

3 problems

The 12 plaintiffs against the Republican plan have three problems, each fatal. First, they are contesting the entire statewide plan rather than their individual districts. So, they are asking the court to change its traditional standards for “standing” to sue, which require persons to demonstrate a “particularized injury” — in this case, that the configurations of their individual districts somehow unconstitutionally devalue their votes. The lead plaintiff is a retired University of Wisconsin professor whose Assembly district in Madison has voted Democrat by an average of 67.2 percent in the last five elections. This does not sadden him. What does — his supposed injury — is that the statewide plan diminishes his chances of enjoying a Democrat majority in the Assembly.

Second, until 31 years ago, the court held that the inevitable political component of redistricting plans is a non-justiciable “political question” properly consigned to the political (elected) branches. In 1986, the court said a political gerrymander could conceivably be justiciable, but it has never discovered what Justice Anthony Kennedy terms “a manageable standard.”

Third, the plaintiffs want the court to plunge the judiciary into unending litigation involving dueling professors who will cherry-pick concocted metrics to serve as standards. Tuesday's arguments will illustrate why Wisconsin warns about a “social science hodgepodge.” Plaintiffs will argue that an “efficiency gap” (the difference between all the loser's votes and the surplus of votes in excess of those the winner needed for victory divided by the total number of votes cast) that exceeds 7 percent — a figure plucked from the ether — is presumptively unconstitutional. By this metric, one-third of all legislative redistricting maps in 41 states over 43 years were impermissibly partisan.

Using partisan social science, the plaintiffs are asking the court to find in the Constitution a hitherto unnoticed requirement for proportional representation. Justice Felix Frankfurter perhaps anticipated this.

When in 1962 the court first intervened in states' redistricting practices, it propounded only the simple and neutral principle of “one person, one vote” — districts must be numerically equal. Nevertheless, Frankfurter dissented, having warned in 1946 against even entering “this political thicket.” He worried that someday the court might be drawn ever-deeper into the fraught business of fine-tuning political processes.

Unless the court is careful, that someday could arrive Tuesday.

George F. Will is a columnist for Newsweek and The Washington Post.

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.