The gerrymandering times they are a-changing

538 just released this totally awesome feature on redrawing district maps in all sorts of cool ways.  And, yes, it is absolutely possible to draw fair maps across the whole nation providing a host of competitive districts.  What we shouldn’t do, though, is focus on shapes, as given the nature of Democratic urban concentrations, basing maps on “compact” districts provides a hefty Republican advantage (though not as much as their current gerrymanders).  So much fun to play with the map options (including for every state).

Anyway, it reminded me of an excellent piece from Jeffrey Toobin about the increasing wave of judges questions partisan gerrymandering:

The legal assault began on January 9th, when, in a powerful two-hundred-and-five-page opinion by Judge James A. Wynn, Jr., a three-judge panel struck down the North Carolina congressional-district lines. What’s most important about Wynn’s opinion is that he seems to have solved the biggest problem with judicial review of gerrymandering: the standard of review. Drawing district lines will always involve some degree of political calculation, but judges have struggled with the question of how much politics is too much. What rule should judges follow to determine if a gerrymander violates the Constitution? Wynn’s test is straightforward. As Nicholas Stephanopoulos, a professor at the University of Chicago Law School, puts it, under this standard, “a district map is invalid if (1) it was enacted with the discriminatory intent of benefiting a particular party and handicapping its opponent; (2) it has produced a discriminatory effect in the form of a large and durable partisan asymmetry in favor of the mapmaking party; and (3) no legitimate justification exists for this effect.” In plain English, Wynn’s test means that if politicians draw district lines solely to protect their partisan interests, they’re invalid. (The Supreme Court put the decision on hold, but this is a routine step when the Justices are considering a similar issue.) [emphases mine]

A comparable rationale seems to have motivated the Pennsylvania Supreme Court, earlier this week, to strike down the Republican gerrymander of the state’s district lines. In a brief order, with a full opinion to come later, the court held that Republican legislators violated the state constitution when they crafted districts that were so favorable to their party. Because the decision was based on the state constitution, as opposed to the federal, that means there is virtually no chance that the U.S. Supreme Court will overturn it. The Pennsylvania court ordered new lines to be drawn in time for the 2018 midterms, including the primaries, so Democrats, who already have a favorable political environment in the state, have a new and better chance of picking up seats there.

As for the Supreme Court, I knew that Maryland had been added to the Wisconsin case, but hadn’t really thought about the politics of it.  I sure hope Toobin is right about this:

Still, the Supreme Court could slow or even stop the momentum against partisan gerrymandering. Last year, the Court heard arguments in a case challenging the Republican-drawn district lines in Wisconsin, and the Justices have yet to reach a decision. But, in addition to sympathetic comments by Justice Anthony Kennedy during the argument of the Wisconsin case, there is another reason for optimism. In December, the Justices agreed to hear a Republican challenge to a gerrymander by Democratic legislators in Maryland. During the oral argument of the Wisconsin case, several Justices expressed worry that they would appear unduly partisan by striking down a Republican-led effort; the chance to eliminate a Democratic initiative at the same time would satisfy the Court’s desire to appear even-handed in its application of a new standard—and would serve as a warning to all states that gerrymandering had become an out-of-control affliction across the country.

That said, it’s pretty much all in Anthony Kennedy’s court.  All we can do is hope he does the obviously right thing.  Though, I do wonder about the possiblity of other states ruling based on their state constitutions, as Pennsylvania has.



About Steve Greene
Professor of Political Science at NC State

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