Yesterday, the Supreme Court announced that it will hear another case on the constitutionality of gerrymandering. This is not the first such case to come before the nation’s highest court, nor is it the only one scheduled to come up on the docket in coming months. However, the outcome will have major ramifications on elections across the nation going forward – particularly regarding the balance of power between the two major parties.
The case is Gill v. Whitford. It specifically addresses the issue of whether or not either the GOP or the Democratic Party have drawn electoral district boundaries in ways that give their own candidates an advantage. The case originated in Wisconsin, where in 2011, three federal judges ruled that the state legislature unconstitutionally drew district boundaries in ways that benefited GOP candidates. Those boundaries were ordered to be redrawn. Predictably, Wisconsin Republicans have been fighting back, applying to the Supreme Court for a stay of the lower court’s order until the case is decided. That stay was granted on Monday in a 5-4 decision.
Guess which SCOTUS justices voted in favor of the GOP defendants?
Wisconsin’s GOP Attorney General, Brad Schimel couldn’t be more pleased. “[We are] thrilled the Supreme Court has granted our request to review the redistricting decision and that Wisconsin will have an opportunity to defend its redistricting process. As I have said before, our redistricting process was entirely lawful and constitutional, and the district court should be reversed,” he said.
Naturally, Schimel is popping the proverbial champagne cork. In the 2012 election, the GOP got less than 49% of the statewide vote, yet somehow managed to win almost two-thirds of the seats in the Wisconsin legislature.
Wisconsin is a microcosm of the nation at large. For example, back in January, Salon published an article on how the majority of Americans support “liberal” ideas such as universal, single payer health care for all, aggressive action on climate change, and a more equitable economy that serves all working people, not just the top 2%.
Despite this, the nation is now held hostage to the extreme right-wing, pro-corporate, anti-citizen, plutocratic GOP, which has now effectively captured all three branches of the federal government as well as the majority of state houses.
Although gerrymandering isn’t the entire reason that we have wound up here instead of there, it has certainly played a large part – and history has repeatedly shown that tyrants drunk on their own power do not give it up without a fight.
Wendy S. Johnson, one of the plaintiffs in Gill, expressed hope:
“I’m grateful the Supreme Court will hear our case and listen to our stories of how we are harmed. No matter which side of the aisle you’re on, we should all be able to agree on one thing: as voters in a democracy we should have the right to freely choose our representatives rather than endure a system where politicians manipulate our district lines, dilute our votes, and choose their own constituents.”
Ms. Johnson added, “The Supreme Court’s ruling could give us back our right to have our vote count.”
The big question is, will it? Or has the GOP’s stacking of the Supreme Court for decades to come effectively sealed American democracy’s doom? The answer is far from clear.
Historically, the Supreme Court has been hesitant to take on cases alleging partisan gerrymandering. The most recent gerrymandering case to come before the SCOTUS involved racial gerrymandering in the state of North Carolina. In a 4-3 decision, the Court ruled that two of North Carolina’s districts had been gerrymandered along racial lines in violation of the Equal Protection Clause.
The last Supreme Court case involving partisan gerrymandering was Vieth v. Jubelirer, after Pennsylvania’s GOP-controlled legislature passed a new redistricting plan favoring their own party. Democrats filed suit, citing that the plan violated Article 1, Section 2 of the Constitution as well as the Equal Protection Clause. The nine justices could not determine when a party’s behavior in such a situation crossed the line from simply supporting one’s own candidates to robbing citizens of their voice. Four conservative judges (including Clarence Thomas) decided that it wasn’t their job to rule on the issue. Four liberal justices (including Ruth Bader Ginsburg and Stephen Breyer) were willing to hear the case, but were unable to agree on how to proceed.
The swing vote was Anthony Kennedy. While he sided with the conservatives in deciding not to try the case, he was open to hearing future cases in which “a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment.” The problem, Justice Kennedy said, was to come up with “a manageable standard by which to measure the effect of the apportionment and so to conclude that the state did impose a burden or restriction on the rights of a party’s voters.”
That case now appears to have come up. According to the complaint, the GOP used a sophisticated method by which they secretly redrew district boundaries. This method involved what is known as “packing and cracking.” Voters who lean Republican are “packed” into a single district, while Democratic voters are “cracked” by scattering them across districts in numbers so small that their votes have virtually no effect on elections.
The defendants argue that any method used to draw legislative districts in Wisconsin will favor the GOP, since Democratic voters are concentrated in large urban areas, while Republican voters are distributed more-or-less evenly all across the Badger State.
The case will come down to whether or not the plaintiffs can prove that the Republican state legislature was acting in a willfully discriminatory way when it redrew its district boundaries. If they can – and at least one of the five right-wing justices is willing to rule on the merits of the case and not on ideology – it could mean that the days of the GOP’s stranglehold on democracy are numbered.