Justices could take up high-stakes fight over electoral maps

The Court will face a stark choice: allow politicians to continue rigging the rules of the game to their own advantage, harming voters in the process, or allow courts to police and correct the worst partisan power grabs from the redistricting process.

The case, Gill v. Whitford, challenges the 2011 Wisconsin state assembly map.

"North Carolina shouldn't hold another session or have another budget voted on by an unconstitutional legislature", Cooper said in a statement.

As it now stands in the courts, the groups who control the map-drawing process can help to sustain their dominance and engineer the political agenda.

An unconstitutional partisan gerrymander, according to the plaintiffs, is one that maximizes the wasted votes for the minority party while minimizing them for the majority party that drew the map (it includes both lost votes cast for the candidates who lose and surplus votes cast for winning candidates).

"The federal trial court found that Wisconsin citizens' rights were violated and that the only solution was a new district maps in time for the 2018 election", said Sachin Chheda, director of the Fair Elections Project, which organized and launched the lawsuit.

The U.S. Supreme Court announced Monday it was taking up a case from Wisconsin on partisan gerrymandering - the first time in more than a decade the court will consider the constitutionality of redrawing political maps based on partisanship. It acknowledged the efficiency gap, but only as one of several theories the court said corroborated its findings that the Republican leadership had a discriminatory intent, that its plan had a discriminatory effect and that the state had no legitimate reason for drawing the districts in the way it did. If the state wins, there'll be no need for new districts. Democrats do the same, but control fewer states. In Virginia, where President Trump lost handily, Republicans have 66 of 100 seats in the House of Delegates.

"Well, it will certainly gain democratic principles if their lines are redrawn". But they have all the levers of power in just six states; Republicans control 25 states, with 197 of the 435 seats in the House of Representatives.

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It comes at a time when the relatively obscure subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress.

A federal court ruled in Wisconsin that Republican lawmakers had violated the US Constitution's equal protection under the law and free speech clauses. Justices also put on hold an earlier ruling requiring that new maps be drawn by November.

The state asked the Supreme Court to block that requirement on the assumption that the justices would hear its appeal in the 2017 term, which begins in October.

It's the high court's first case on what's known as partisan gerrymandering in more than a decade, and the outcome could affect elections across the country. In the last case, four justices sought to curtail that role by declaring it a political question outside their jurisdiction. However, Kennedy effectively opened the door for future challengers to come up with a new standard that could satisfy the court's perennial swing justice. As Yale Law School dean Heather Gerken noted in a Vox piece following the initial district court decision, a gap above that amount indicates that the disadvantaged party "would have nearly no chance of taking control of the legislature during the 10-year districting cycle".

Editor's note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. "It's clearly a community that's unique and different politically than other areas".

What is at stake here, both if the U.S. Supreme Court takes this up, and if it decides not to?

The measure, called the efficiency gap, shows how cracking (breaking up blocs of Democratic voters) and packing (concentrating Democrats within certain districts) results in wasted votes - excess votes for winners in safe districts and perpetually inadequate votes for the losers.

  • Phil Peters