Gerrymandering: Should the Supreme Court intervene?
“Donald Trump was right,” said The New York Times in an editorial: “America’s political system is rigged.” One primary way the rigging is accomplished is through partisan “gerrymandering”—the practice of redrawing electoral districts to favor one political party over the other. This week the Supreme Court heard oral arguments in a landmark gerrymandering case that could “transform the American landscape.” The case of Gill v. Whitford concerns Wisconsin, whose GOPcontrolled legislature redrew boundaries with such blatant partisanship that even though Democrats won 51 percent of statewide votes in 2012, Republicans took 60 of 99 seats in the state assembly. And Wisconsin is no aberration. Nationally, recent Republican gerrymandering helps explain why the GOP holds 10 percent more House seats than the Democrats (241 to 194) despite winning only 1 percent more of the congressional vote in 2016. The Supreme Court has historically shied away from gerrymandering cases, said Noah Feldman in Bloomberg.com, for fear of being accused of meddling in politics. A newly developed statistic called the “efficiency gap,” however, precisely measures the effect of redistricting on parties’ relative power in a state. In oral arguments this week, perennial swing vote Anthony Kennedy seemed receptive to using the “efficiency gap” as a tool in such cases. If he upholds a lower-court ruling that Wisconsin’s redistricting violates the Constitution’s “one person, one vote” principle, it would be a “game-changing decision.”
The Democrats’ problem isn’t gerrymandering, said Guy Harrison and Jason Torchinsky in NationalReview.com, which both parties practice with relish when in power. Their real problem is that their voters are now “clustered into coastal states and large urban areas.” That gives them lopsided victories in relatively few districts, but few voters in the many districts encompassing large rural areas that lean Republican. Unable to woo rural voters with their policies, Democrats are now essentially asking the Supreme Court to undo natural self-sorting. District-based representation is a “bedrock principle of American politics,” said John Ryder in The Wall Street Journal. Replacing it with what Chief Justice John Roberts this week called “sociological gobbledygook” about fairness is “a line the high court shouldn’t cross.”
Crossing that line would lead to “unending litigation,” said George Will in The Washington Post. Drawing electoral districts has been a partisan process since the beginning of our republic. If courts intervene on the basis of an “efficiency gap,” both parties will summon “dueling professors who will cherry-pick concocted metrics” to insist various districts are unfair. That’s why Supreme Court Justice Felix Frankfurter warned in a 1946 gerrymandering case that the court should not enter “this political thicket.”
The court’s historic reluctance to tackle this issue is understandable, said Edwin Chereminsky in The Sacramento Bee. But sophisticated computer programs have made gerrymandering more powerful than ever, and when a minority of voters consistently wins a majority of seats, it leaves voters cynical about the political process. In the Wisconsin case, a federal court ruled that the “efficiency gap”—which measures how many votes were “wasted” in districts a party didn’t win—provides a reliable measure of how districts were drawn. When a state cannot explain a major gap by natural geography or population patterns, the court ruled, it’s fair to conclude that the districts were drawn unconstitutionally. If we’re to avoid a true crisis in our democracy, we urgently need to get back to a system where voters choose their elected officials, rather than “elected officials choosing their voters.”