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GAP Joins Amicus Party Opposing Partisan Gerrymandering in Gill v. Whitford

Staff, October 06, 2017

The Government Accountability Project (GAP) has joined on as an amicus party opposing egregious partisan gerrymandering by Wisconsin lawmakers, as part of the case Gill v. Whitford, one of the most important Supreme Court cases of the year.

On Tuesday, October 4, the U.S. Supreme Court overheard oral arguments on the issue of whether it has the right to intervene and strike down state electoral maps that allot one party disproportional representation in their legislatures. Although both major U.S. political parties have been accused of such conduct, public outrage boiled over in 2010 after Republicans in Wisconsin won full control of the state government.

The extent to which the lawmakers skewed the map wasn’t revealed until the 2012 elections, when Republicans gained 60 of the legislature’s 99 seats despite receiving only 49 percent of the statewide vote. Paul Smith, an attorney for the Democratic voters who subsequently sued, argued Tuesday that the case “is one of the most extreme gerrymanders ever drawn in living memory of the United States.”

Smith is right. Without question, gerrymandering “warps and imperils democracy.” Animosity between Republicans and Democrats is at a 25-year high, which suggests politically motivated redistricting efforts will probably only worsen over time. If we can’t place trust in our politicians to self-correct their behavior (public approval ratings of Congress are at a paltry 16 percent) we are likely to see an increase in gerrymandering efforts nationwide similar to those in Wisconsin. The responsibility to correct these continued erosions of U.S. democracy should fall to the courts; otherwise, a troublesome precedent will result.

The Supreme Court has visited this issue in the past. In the 2004 case Vieth v. Jubelirer, an almost evenly split court found similar gerrymandering efforts in Pennsylvania constitutional. Justice Anthony M. Kennedy, voting with the plurality, wrote that the main problem was that there was no preexisting “workable standard” whereby the Court would be able to determine the specific point at which gerrymandering had gone too far and crossed over into the realm of unconstitutionality. “Gerrymandering claims are non-justiciable,” the plurality concluded, “because no judicially discernable and manageable standards for adjudicating such claims exist.”

The workable standard question has reemerged as a key point in Gill v. Whitford, and the plaintiffs are arguing that it is indeed possible to identify a method the courts may use to determine what comprises unconstitutional gerrymandering. Whitford offered a reasonable three-part test, which includes the following factors: the intent in making the map; whether redistricting has a discriminatory effect; and whether there is a legitimate justification for the cartography. Taken together, these components can be used as a standardized checklist by courts throughout the country to hedge against any further redistricting efforts aimed at diminishing the value of a citizen’s vote in comparison to others.

Within the past few years, mathematicians and experts in other scientific disciplines have made remarkable strides in quantifying the detrimental effects of gerrymandering. Moon Duchin, an associate professor of mathematics at Tufts University, for example, established the Metric Geometry and Gerrymandering Group, which “aims to train mathematicians in mapping and civil rights law so they can be expert witnesses in gerrymandering cases.” These scientifically validated models have given us more clarity than ever before into increasingly worrisome gerrymandering trends. Should courts adopt these tools for use in a new standard, they can start to play an active role in keeping our democratic process healthy and robust, and our politicians transparent and accountable.

It is high time partisan gerrymandering is addressed by the courts. Given that the nation’s political landscape is scheduled to be redrawn in 2020, there is not much time to act. GAP will be working to support Whitford in his laudable efforts to have the courts play a necessary role in preserving our nation’s democratic integrity.