The Supreme Court's Chance to End the Gerrymander
“Fair and effective representation for all citizens,” the U.S. Supreme Court has ruled, is a requirement of democracy. In the half-century since that decision, however, the court has declined several chances to strike down a practice that undermines this standard. Now it has another opportunity, and it should not let it go to waste.
There are good reasons for the court’s reticence about gerrymandering, the practice of drawing legislative districts to exploit partisan advantage. Partisan loyalties are fluid, and there’s no “apolitical” way to draw voting districts. The court is also mindful of the legislative branch’s prerogative to conduct its own affairs. Nevertheless, the court has accepted a Wisconsin case that shows a way to make congressional elections more fair and efficient.
The legislative map the state’s Republican lawmakers drew was notably lopsided; in the 2012 election, the first using the new district lines, Republicans won 60 of 99 state assembly seats despite winning less than half of the statewide vote. In a 2-1 ruling, a federal panel ruled that the map is so partisan that it violated Democrats’ constitutional rights of equal protection -- diluting the power of their votes.
There is no recognized judicial standard for determining when a map becomes too partisan; the Supreme Court has never found a map so egregious that it failed to pass constitutional muster. In a 2004 opinion, Justice Anthony Kennedy noted “the lack of comprehensive and neutral principles for drawing electoral boundaries.” Since then, however, the combination of growing hyper-partisanship -- and ever more exact computer programs designed to maximize partisan advantage in drawing districts -- have led to a near crisis.
The plaintiffs in this case offer a way out, presenting a novel “efficiency” test to measure whether a district is so gerrymandered as to be unconstitutional. There are other standards for analyzing the effects of gerrymanders. But this one is appealing because it offers the justices a way to assess fairness by taking partisanship into account without trying to control for it.
American democracy is designed to withstand some amount of political imbalance. The incumbent president, after all, received almost 3 million fewer votes than his opponent. In the U.S. Senate, the voices of Californians are drastically discounted compared with those of Montanans. Such inequities are built into the federal system and the Electoral College. Their firm foundation makes them no less unfair, however. Because unfairness undermines democratic ideals and the faith necessary to realize them, it should be mitigated when possible.
As the court considers the effects of districts drawn for maximum partisan advantage -- in effect, maximum unfairness -- it should weigh the costs of partisanship borne by millions of American voters, Democrat and Republican alike.
--Editors: Francis Wilkinson, Michael Newman.
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