Terry H. Schwadron
March 29, 2019
Testimony and judicial questions this last week in the Supreme Court suggests deep division of what to do about gerrymandering, a growing problem among states in which state legislators want to corral partisan advantage in elections.
Assessing any court decision based solely on the kinds of questions being asked aloud is anything but definitive, but the hearing on cases from Maryland and North Carolina show that while there is desire for a clear standard for all to us, no one has that formula. Indeed, a fundamental concern reflected in the questions seemed as much a desire on the part of the Court to avoid having judges decide elections as it may have been to preserve the sanctity of any election vote.
Simply put, if a majority state legislature draws political lines to favor its own candidates, it is devaluing the power of an individual’s vote. That seemed to be a theme that all the justices asking questions could accept.
But just how to assure fairness seemed just out of grasp — for the lawyers involved as well as for the justices. In the past, the Court has largely ducked the issues, dealing with procedural issues in sending cases back to local judges to work with local officials.
You’ve seen some of the outrageous results of these kinds of cases — a district map through the campus of a black college, breaking the local black vote into two safely drawn white districts. Or ignoring natural borders like rivers to bring about jigsaw puzzle shaped districts where the partisan outcome is more predictable.
The Court has said districts cannot be drawn on the basis of race. Now the question is whether they can be limited by “extreme” interpretations of partisanship.
Some 15 states have independent commissions to draw the lines, but that too, does not seem the singular answer, because federal law just leaves the whole question of voting districts to the states.
To show just how difficult the solutions, the fivethirtyeight.com website has a gerrymandering project with lots of points of view. In particular, an article by David Wasserman about solution-seeking is a good primer. He writes, “It’s much more difficult to say what districts should look like, because reformers can disagree on what priorities should govern our political cartography. Should districts be drawn to be more compact? More conducive to competitive elections? More inclusive of underrepresented racial groups? Should they yield a mix of Democratic and Republican representatives that better matches the political makeup of a state? Could they even be drawn at random? These concepts can be difficult to define and often stand in tension with one another.”
All of this is under increased pressure this year because a new Census looms for 2020 that will require redrawing of districts in many states. A related question here in a separate Supreme Court cases involves whether the federal government can choose not to count immigrants, illegal immigrants, or prisoners in their state counts; these counts then are used in drawing election districts as well as in apportioning federal money in grant programs.
NPR noted that new Justice Brett M. Kavanaugh seemed to be the most conflicted among the justices about any limits on partisan redistricting. “I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy,” Kavanaugh told the lawyers arguing the case, “and I’m not going to dispute that.”
After the 2010 midterms, Republicans used their control of many state legislatures to draw favorable congressional maps for the GOP. An analysis this month by the Associated Press found that Republicans very likely won about 16 more House seats last fall than they would have been expected to based on their share of the vote owing to those lines. Still, Democrats did win control of the House..
Carefully, Kavanaugh walked lawyers through several alternatives, to which lawyers noted the practical difficulties in administering results. In any comparison of “exteme,” logic suggests you need a neutral baseline for comparison. In these cases, there is none.
One thing we know for sure: Our partisan legislators want to win, and they will invent more and more tools that allow them to do so.