Irony alert: I don’t feel particularly friendly toward the current U.S. Supreme Court, but next week I will officially be a “Friend of the Court.” That’s because I am one of 65 former and current legislators from eight states and both parties who have filed a Friend of the Court brief ("amicus" in legalese) asking the Supreme Court to stop extreme partisan gerrymandering.
Next Tuesday, Oct. 3, the court will hear oral arguments in Gill v. Whitford. That case, which originated in Wisconsin, seeks to declare extreme partisan redistricting unconstitutional. The court’s decision will profoundly impact elections for decades to come, not just in Wisconsin but nationwide.
The case contests the extreme gerrymandering passed by Wisconsin Republicans for legislative elections. Republicans who controlled the Legislature configured the state's legislative districts to virtually ensure themselves continued control regardless of what the voters wanted. For example, in the 2012 election, Democrats received more than 52 percent of the vote for the state Assembly, but won less than 39 percent of the seats. Much like elections in Vladimir Putin’s Russia, the results in legislative elections are essentially preordained because the party in control has rigged the system to stay in control.
Gerrymandering, of course, is nothing new. The term owes its derivation to Gov. Elbridge Gerry, who approved a district way back in 1812 that resembled a salamander. What is new is modern data analysis. The amicus brief argues: “The information age has supercharged partisan gerrymandering. Today, powerful software and detailed, block-by-block voter data enable redistricting plans that give one party huge partisan advantages.” A redistricting expert summed it up well: “Gerrymandering used to be a dark art, and now it’s a dark science.”
A federal Appeals Court ruled that the extreme partisan nature of the legislative districts in Wisconsin deprived citizens of their rights guaranteed under the First and 14th Amendments. Republicans, using taxpayer money, have appealed that ruling to the Supreme Court.
Gerrymandering is certainly not confined to Wisconsin. Republican control of Congress is largely due to gerrymandering. For example, Democratic and Republican voters are pretty evenly split in Ohio, Pennsylvania and North Carolina. However, because of Republican gerrymandering, there are 35 Republican members of Congress from those states and only 12 Democrats.
The Supreme Court has previously refused to stop partisan gerrymandering but this time things may be different (They sure should be!). In a 2004 ruling, the court upheld partisan gerrymandering in Pennsylvania on a 5-4 vote. Justice Kennedy was the decisive vote then and likely will be again. While Kennedy sided with the pro-gerrymandering majority, he refused to sign on to the majority brief. Instead, he wrote his own opinion indicating that he might rule against partisan gerrymandering in the future if a method was developed to measure when redistricting was too partisan. He said he wanted a “clear, manageable and politically neutral standard” to evaluate the level of partisanship in redistricting. The Wisconsin case presents exactly the kind of standard Kennedy wanted. It utilizes an academically rigorous method to precisely measure the level of partisan redistricting.
Kennedy, in his 2004 opinion, predicted that more sophisticated redistricting technologies represent a potential threat to democracy. He was right. In our bipartisan amicus brief, we spell out the ways that partisan redistricting has gravely harmed our political system: undermining bipartisanship, increasing polarization, exacerbating legislative dysfunction, reducing the accountability of elected officials, and subverting the American ideal of fair representation.
The outcome of this case will greatly impact the quality of our democracy. Kennedy’s vote will likely be decisive. Will Justice Kennedy be true to his word and to our American democratic ideals?
Spencer Black represented the 77th Assembly District for 26 years and was chair of the Natural Resources Committee. He is a director of the national Sierra Club and an adjunct professor of urban and regional planning at UW-Madison.