Will the Court Ever Address Gerrymandering?

https://www.nytimes.com/2018/06/18/opinion/will-the-court-ever-address-gerrymandering.html

Version 0 of 1.

Among major democracies, only in the United States are self-interested politicians given the exclusive power to design election districts for themselves and their allies. Other countries lodge this power with independent commissions. In the absence of such institutions, the pressure for courts to impose constitutional constraints on partisan gerrymandering becomes powerful, particularly as the manipulation of electoral districts for partisan advantage has become more brazen, more extreme, more effective and more consequential.

Decisions on two cases Monday by the Supreme Court — an alleged Republican gerrymander in Wisconsin and a Democratic one in Maryland — shut down one novel approach to attacking partisan gerrymanders on constitutional grounds.

But the court did not address the fundamental question of whether it is constitutional to move voters in and out of election districts based on their political viewpoints for the purpose of enabling the party in power to control more seats than it would under a neutral plan. A three-judge federal court has already held that North Carolina did exactly that, violating the Constitution in redrawing its congressional districts.

In its next term, the court might well review that decision and confront this key question. So far, the Supreme Court has never struck down an election district or redistricting plan redistricting court as an unconstitutional political gerrymander.

In the Wisconsin case, the court unanimously rejected the attempt to challenge a statewide redistricting plan as a whole. The plaintiffs argued that the overall effect of the plan, as well as its intent, was to give Republicans a far greater share of the seats in the State Legislature than they would have received under a neutral or nonpartisan plan.

To mount a challenge to a statewide map of election districts, plaintiffs have to marshal data to show that the most plausible explanation for the plan was that it was the result of willful partisan manipulation. Disadvantaged voters in Wisconsin wanted to frame their challenge against a statewide map in this way because the approach corresponds to the way partisan mapmakers actually work. The goal of the party in power is to maximize the overall partisan advantages of a plan as it manipulates the design of particular districts.

But the court insisted that partisan gerrymandering challenges must instead focus on specific districts and not only on the overall effects of a plan. The thrust of Monday’s decision in the Wisconsin case is that an individual must show that his or her specific district was the product of a partisan gerrymander, though a four-justice concurrence left open a different possible path to statewide challenges. The court sent the case back to a trial court to allow the plaintiffs to try again.

This district-by-district approach to attacking partisan gerrymanders will now move to center stage. The Maryland case was framed this way, but the court found it premature for consideration and sent it back for a full trial. So the Maryland case added nothing to our understanding of partisan gerrymandering doctrine.

But the court’s rejection of statewide challenges in the Wisconsin case will make gerrymandering litigation more complex. Instead of being able to rely primarily on data showing the overall partisan advantages of a plan, challengers will have to prove how and why specific districts were drawn in the way they were.

Redrawing district maps is typically done on a computer by an expert in consultation with a few key legislators. Hundreds of changes to the map are explored behind closed doors. Challengers then have to try to reconstruct how any particular district ended up the way it did; in other words, why certain areas were left in or out. This can mean lengthy trials and arguments in court teasing out the reasons particular choices were made.

But current legal doctrine is so toothless that legislators have no trouble brazenly making these comments in public: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Or, it was “my intent” to “create a district where the people would be more likely to elect a Democrat than a Republican, yes, this was clearly my intent.” Or, “I acknowledge freely that this would be a political gerrymander, which is not against the law.”

Looming in the wings, and probably to be heard in the next term is the case from North Carolina, which will squarely test how aggressively courts will be in policing partisan manipulation of district design. We are likely to find out then whether it really is legal for legislatures to move voters in or out of a district based on their voting histories for no legitimate purpose other than the party in charge of the redistricting is seeking to gain partisan advantage.

For now, the verdict is still out on how strong a role courts will play in constraining partisan gerrymandering. But in the long run, the most effective solutions to partisan gerrymandering are going to be approaches that limit the possibilities at the outset.

One option would be to change the institutional forum in which redistricting is done. We can take the power out of the hands of partisan state legislatures and give it to carefully designed independent or bipartisan commissions. Sitting legislatures rarely give up this power voluntarily, but voters have passed referendums in recent years in several states, such as California and Arizona, to set up such commissions.

A second approach would be to enlist the power of technology to create politically fair redistricting maps. In a public and transparent way, legislatures or others can identify in advance, through public processes, the criteria a redistricting map should meet and the weight those different criteria should have.

Computers can then design plans that reflect these criteria and their relative weighting. If we want, we can ensure that the programs do not take into account anything about the political preferences of voters. Or, if we think that politically fair districting plans ought to produce statewide outcomes that roughly reflect the statewide political preferences of voters, the process can be designed to enable computers to take that political consideration into account.

But until we shift to a more sensible system than having partisan state legislatures create election districts, judicial constraints would be welcome. Monday’s decisions reject one means of challenging partisan gerrymanders under the Constitution, but the court is soon going to be faced with other approaches.