A lawyer for Wisconsin voters begged the Supreme Court on Monday to fix how states draw their election maps — for the sake of democracy.
“The country is going to lose faith in democracy. You are the only institution that can resolve this problem,” said Paul Smith, the lawyer arguing for Wisconsin voters challenging their state’s map.
For the first time in more than a decade, the Supreme Court will decide just how biased state legislatures can be when they draw election district lines to their party’s advantage — a process known as partisan gerrymandering. While the case — Gil v. Whitford — focuses on Wisconsin’s election map, the stakes are much higher; after the 2020 census, every state will redraw its districts to last the next ten years.
“If you let this go, in 2020 you are going to have a festival of copycat gerrymandering the likes of which this country have never seen,” Smith continued in court on Tuesday.
The lawyer defending Wisconsin’s map, Misha Tseytlin, however, called the fears about more political gerrymandering after the 2020 census “scare tactics” and argued the twelve voters who brought the case don’t have a right to sue over the entire state’s map.
The challenge originated when Wisconsin Republicans won control of both the state legislature and the governor’s office in 2010, a rare occurrence in a typically purple state. They seized the opportunity to have their own party-controlled legislature redraw the district maps instead of the courts, which take over in the case of a divided state government.
And it payed off.
During the next election cycle in 2012, Democrats received a higher percentage of the vote but secured fewer seats in the legislature. In 2014, Republicans once again secured a higher percentage of seats than votes.
As a result, twelve Democrat voters sued the state over an election map they consider unconstitutional for diluting Democratic votes. When a district court agreed with the voters, Wisconsin appealed to the Supreme Court.
The voters challenging the map have suggested a new test the courts should use to identify unlawful political gerrymandering called the efficiency gap, a mathematical equation that measures the extent to which a person’s vote matters if they vote for one party versus the other. Chief Justice John Roberts and Justice Stephen Breyer called the arithmetic “gobbledygook.”
During oral arguments on Monday, the justices seemed to agree that extreme political gerrymandering could pose a problem — but they remained divided about how to ensure states lawfully draw their maps, and, perhaps more profoundly, the court’s role in creating the standard at all.
“What’s behind all of this?” Justice Ruth Bader Ginsburg asked. “If you stack a legislature in this way, what incentive is there to vote? What becomes of the precious right to vote?”
While the liberal justices seemed compelled to intervene, some of the conservative justices, like Chief Justice Roberts, voiced concerns about opening the floodgates to future litigation from other states.
“You’re taking these issues away from democracy and you’re throwing them into the courts,” he said. “That is going to cause very serious harm to the status and integrity of the decisions of the court in the eyes of the country.”
The traditional swing vote, however, Justice Anthony Kennedy, remained relatively silent, making it difficult to predict which way the court would rule.
More than a decade ago the Supreme Court decided not to get involved in claims of partisan gerrymandering because the issue was too difficult for the court to parse. But the twelve Wisconsinites suing the state — along with fifteen other groups who filed amicus briefs supporting them — hope the court will finally draw a constitutional line that states cannot cross.
“Politicians are never going to fix gerrymandering,” Smith said in court. “This is the last chance.”
Cover image: Shirley Connuck, right, holds up a sign representing a district in Texas, as the Supreme Court hears a case on partisan gerrymandering by state legislatures on October 3, 2017. (Photo By Tom Williams/CQ Roll Call)