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Gerrymandering: Drawing districts for political advantage

20 Juin 2017

The court will examine a case from Wisconsin, in which a group of voters from across the state contend Republican state legislatures acted unconstitutionally in drawing the map to benefit their party. Although the justices have frequently invalidated district maps that disadvantage minorities, they have stopped short of striking down maps favoring one political party over the other. The lower court did devise a constitutional formula for judging when a partisan gerrymander did go too far.

I think our experts said it would take a political quake in Wisconsin for you to actually get Democrats back in control of the house (Assembly.) Even though, in 2012, over 50% of the state voted for Democrat candidates, yet 60% of the Legislature ended up Republican.

When the Supreme Court last addressed partisan gerrymandering, in a 2004 case called Vieth v. Jubelirer, Kennedy sided with a 5-4 majority that rejected an argument from Pennsylvania voters who claimed an aggressive GOP gerrymander interfered with their constitutional right to equal protection.

"We filed this suit because our rights were being violated, and a federal trial court agreed", said Bill Whitford, a retired law professor who serves as lead plaintiff.

The efficiency gap is key to the plaintiffs' arguments in Gill v. Whitford.

But the court has not ever ruled on electoral maps that have been re-drawn simply to give a political advantage to one party over another.

Burden noted that because the Wisconsin case only deals with state legislative districts, separate litigation would be needed to deal with the way congressional districts are drawn.

The case was initially decided in November by a panel of two U.S. District Court judges and a U.S. Court of Appeals judge, which said in a 2-1 decision that the 2011 Republican re-draw of state Assembly boundaries is an unconstitutional partisan gerrymander.

However, the court has yet to establish this workable standard and determine "how much is too much?" when it comes to the partisan effects of redistricting. Packing is when a party's voters are concentrated in few districts that they win overwhelmingly.

This is the first time in more than ten years that the justices will consider allegations of gerrymandering - and observers see the their final ruling as one which impact how elections are run throughout the nation.

"I acknowledge freely that this would be a political gerrymander, which is not against the law", Lewis said. While Republicans are right to criticize Democrats for their practices of gerrymandering, the current maps are arguably more egregious. They were trying to get an advantage, and it turns out they really did get an advantage. He added, though, that because of the time it will take for the Supreme Court to decide the case, "In 2018, we're very likely to be using the districts we have today", regardless of how the court rules.

The case in the short term could affect congressional maps in about half a dozen states and legislative maps in about 10 states, before having major implications for the post-2020 redistricting, according to the New York University School of Law's Brennan Center for Justice.

Now, however, the Wisconsin case will confront the high court with raw politics, not race. This ruling represented the first time in over three decades that a federal court had declared a map to be an unconstitutional partisan gerrymander. Their test, known as the "efficiency gap", focuses on how frequently votes in a particular district are effectively wasted, either because they go to a candidate who loses or because they provide the victor with more support than was necessary.

Two of the districts approved by lawmakers in 2011 - the 1st in the northeastern part of the state and the 12th, which stretched through the Piedmont - were found to be unconstitutional racial gerrymanders.

Gerrymandering: Drawing districts for political advantage