On Tuesday, the U.S. Supreme Court heard oral arguments in a major new case about partisan gerrymandering. The case will likely be determined by the swing vote of Justice Anthony Kennedy.
After the Nov. 8 election, a federal court struck down a legislative map in Wisconsin for being too partisan. Because of special rules around voting-rights cases, it is required that the Supreme Court now hear the case.
The case, called Gill v. Whitford, was brought before the Supreme Court after federal judges in Wisconsin found that the Wisconsin State Assembly map violated the 1st and 14th amendments of the federal Constitution. The decision declared that the map “constitutes an unconstitutional partisan gerrymander” which “dilutes the voting strength of Democratic voters statewide” and “is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest.”
Vieth v. Jubelirer was the last significant gerrymandering case heard by the Supreme Court. It was decided in 2004, and the decision was written by Justice Antonin Scalia. However, it was a “plurality decision,” in which no opinion received a majority. The plurality decision did declare that partisan gerrymandering is “non-justiciable,” meaning that the Supreme Court was not empowered to adjudicate on such claims of unconstitutional gerrymandering.
In Vieth, Justice Kennedy agreed that the the court could not strike down the districting at hand, but remained open to the possibility that the Court could interfere against an extreme partisan map in the future. However, Kennedy wrote that there was not a clear standard for deciding when partisan districting had became unconstitutional.
“That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” Kennedy wrote.
In Gill, the plaintiffs are centering their argument on just such a new mechanism for the courts to quantify the damage caused by partisan districting. The “efficiency gap” is a way of determining the number of votes that are “wasted” by Democratic and Republican voters in a set of legislative elections. The system was developed by Eric McGhee and Nicholas Stephanopoulos.
The term “wasted” applies to two main possible events in an election. First, a candidate might receive more votes than necessary to win. And second, there may be too few votes to elect a candidate. The “efficiency gap” then measures the partisanship of a redistricting plan according to whether it increases the relative number of “wasted” votes of one party over another.
For example, the Wisconsin State Assembly elections in 2012 had an “efficiency gap” of 13% in favor of the Republican party. For the voters this meant that the Democrats receiving 53% of the votes cast translated into 39% of the seats in the state assembly.
The Gill case is likely to be a watershed in election law jurisprudence. If the court rules against the plaintiffs, then it could mean that no amount of partisan bias is truly unconstitutional.
Either way, the case has galvanized many scholars to expand the study of redistricting. As a result, Justice Kennedy and the rest of the Supreme Court will have more resources than ever to form their opinions on the case.
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