On Tuesday, the Supreme Court will hear an appeal of a lower court ruling that struck down Wisconsin’s Republican-drawn state Assembly map as an unconstitutional partisan gerrymander. Over the past three decades, the high court has repeatedly held that partisan gerrymandering could in theory run afoul of the Constitution, but it has never struck down any maps on these grounds because it’s never been able to decide upon a standard for when to do so. If, however, the Supreme Court changes course and sides with the district court, a ruling in Gill v. Whitford could establish a sweeping precedent leading to a slew of lawsuits against partisan gerrymanders nationwide.
Republicans aggressively gerrymandered Wisconsin after they gained full control of the state’s government following the 2010 GOP wave. Their Assembly lines were particularly effective: Republicans won a commanding 60-to-39 majority in the chamber in 2012 even as Barack Obama carried Wisconsin by 7 percentage points and Democratic legislative candidates won more votes statewide than Republicans did by a similar margin. And as shown in the map at the top of this post, Republicans maintained a lopsided 64-35 majority in 2016, despite the fact that Donald Trump won the state by less than one percent of the vote.
While it has regularly invalidated maps for improperly using race, the Supreme Court, as noted above, has never struck down a map for excessive partisanship despite 31 years of precedent that partisan gerrymandering could theoretically be unconstitutional. In a 2004 case on this topic called Vieth v. Jubelirer, Justice Anthony Kennedy, as the deciding vote, refused to strike down the map at issue on the grounds that it represented an unfair partisan gerrymander. However, Kennedy effectively opened the door for future challengers if they could ever come up with a new standard for evaluating such claims—a standard that would have to satisfy the court’s perennial swing justice.
The plaintiffs in Wisconsin have sought to overcome this problem by proposing a mathematical test called the “efficiency gap” that examines how many votes get “wasted” in each election, which we have explained in detail here. Under this test, if one party routinely wins landslide victories in a minority of seats while the other party wins much more modest yet secure margins in the vast majority of districts, that could signify a gerrymander that has gone so far as to infringe upon the rights of voters to free speech and equal protection. Although this test has some major flaws, it provides one of many tools a court could use to judge a map’s partisan distortion.
from Daily Kos http://ift.tt/2yUm3i9
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