Partisan Gerrymandering is Perfectly Constitutional
The Supreme Court ought to agree
The current Supreme Court term has no shortage of high-profile cases, but there is perhaps no case that holds greater political significance than Gill v. Whitford.
The plaintiffs in Gill are a group of registered Democrats in Wisconsin who argue that Wisconsin’s state assembly districts are drawn to unfairly favor Republican candidates. Wisconsin’s district map is admittedly a typical example of partisan gerrymandering. In 2011, Republican legislators “packed” Wisconsin Democrat voters by concentrating their power in a few districts and “cracked” them by diluting their strength across most other districts. Partisan gerrymandering is standard practice in many states throughout the country, and it has been used as a political tool by parties on both the left and the right for centuries. Despite its longstanding use, the plaintiffs assert that partisan gerrymandering is inherently unconstitutional under the Fourteenth Amendment’s guarantee of equal protection of law.
In 2016, a three-judge panel of the U.S. District Court for the Western District of Wisconsin agreed with the plaintiffs and declared Wisconsin’s state assembly map unconstitutional. The judges ruled that partisan gerrymandering impedes the plaintiffs’ ability to vote on the basis of their political affiliation. To justify its decision, the district court cited the “efficiency gap” metric developed by Eric McGhee, a researcher at the Public Policy Institute of California, and Nicholas Stephanopoulos, a professor at the University of Chicago Law School. McGhee and Stephanopoulos claim that this metric “captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan.” According to the court, the efficiency gap of Wisconsin’s districts revealed that the districts favored Republicans too much and thus denied the plaintiffs their equal protection rights as voters. Wisconsin appealed the ruling, and the Supreme Court accepted the case for review earlier this year.
Simply put, the district court’s rationale is wrong, as it conflicts with a prior Supreme Court decision. In the 2004 case Vieth v. Jubelirer, the Supreme Court ruled that partisan gerrymandering is a nonjusticiable question. In other words, the courts cannot strike down maps as unconstitutional partisan gerrymanders. Justice Antonin Scalia wrote in a plurality opinion there is no “manageable standard” that can be used to judge these claims under the Constitution. Justice Anthony Kennedy concurred with the plurality, but left open the possibility that the Court could determine a manageable standard in the future (the Supreme Court, that is). Thus, the district court’s ruling violates Vieth v. Jubelirer. Unless the Supreme Court decides that a manageable standard exists, lower courts have no business striking down any map.
Furthermore, I would argue that the four-justice plurality in Vieth v. Jubelirer is correct that even the Supreme Court has no business declaring maps unconstitutional. Justice Kennedy left the door open for a manageable standard to be adopted by the Court in the future, but the reality is that no such standard exists, unless the Supreme Court wants to essentially pull one out of thin air (the efficiency gap). Neither the Constitution nor federal law give the judicial branch a standard to review partisan gerrymandering claims. “Equal protection of the laws” was never intended to restrict partisan gerrymandering, which is about as American as apple pie. Thus, the Supreme Court should declare that under current law, all partisan gerrymandering claims must be deemed nonjusticiable questions.
I am not arguing that partisan gerrymandering is wise policy as it clearly is not. Ideally, districts would be drawn independently from partisan political considerations. Regrettably, both Republicans and Democrats have been responsible for gerrymandering maps all across the country, not just in Wisconsin. However, if partisan gerrymandering is to be remedied, it must be done on a legislative basis in the state legislatures or in Congress, not through the courts. The judicial branch is responsible for interpreting the Constitution as written, not pursuing extraconstitutional policy ideals.
A Supreme Court ruling in favor of the plaintiffs would be ruling in favor of an arbitrary metric (the efficiency gap) that has absolutely no roots in constitutional text. The district court was wrong to rule partisan gerrymandering unconstitutional, as the Supreme Court would be wrong if it upholds the district court ruling in its decision later in 2018. A flurry of lawsuits would undoubtedly follow a ruling striking down Wisconsin’s map, clogging the courts and causing political chaos that would do great damage to the Supreme Court’s reputation of independence from partisan politics. Court-watchers expect a 5-4 decision, with Justice Kennedy likely serving as the essential swing vote. Hopefully, Kennedy understands that a ruling preserving the Wisconsin map would not only be legally sound, but would also preserve the Court’s reputation and prevent judicial and political disarray.
[Editor’s Note: The views expressed in this article are those of the author and do not constitute an editorial position of the Irish Rover]
Brennan Buhr is a sophomore political science and theology major and history minor living in Knott Hall. You will often find him sweating profusely at Rolfs while playing basketball. He is an 80% free throw shooter.