The Supreme Court has decided to review three partisan redistricting cases this term. One case centers on an alleged Republican partisan gerrymander in Wisconsin (Gill v. Whitford), another on an alleged Democratic gerrymander in Maryland (Benisek v. Lamone) and the third, an alleged Texas racial gerrymander undertaken for partisan reasons (Perez v. Abbott). Taking these cases up in the same term suggests that the Supreme Court may have something meaningful in mind, but it is not at all clear what that something is.
Expectations are all over the map. The reform community hopes that Justice Kennedy will give them a parting gift in the form of a manageable judicial standard striking down partisan gerrymandering once and for all. That expectation could be wrong on two counts: first, that Justice Kennedy is leaving the Court any time soon, and second, that he will finally give them the ruling that they so desperately want. It is just as likely that this predominantly conservative Court could decide to put a stake in the heart of the anti-gerrymandering effort once and for all, or fail to find any clear consensus, leaving the whole matter in a continued state of ambiguity as it has done in the past.
As anyone who has taken high school civics knows, the United States has been grappling with the partisan line-drawing problem since Eldridge Gerry’s second term as Governor of Massachusetts. Despite numerous legal cases and decades of reform efforts, redistricting is as contentious as ever. In the 2010 cycle alone, there have been 223 redistricting cases so far, nine of which are still active in 2018, just two years before the whole contentious process begins anew.
So, one might ask, what is behind the new effort to resolve this very old problem? First, the political context of redistricting litigation has changed in several significant ways. The controlling cases—Davis v. Bandemer (1986) and Vieth v. Jubelirer (2004)—were decided just as the trend of rising partisan polarization was taking off. The political system now, including the Court, is more divided along party and ideological lines than it was several decades ago. Election administration generally has become a political battlefield, with both parties looking to gain a tactical edge that will help them attain or maintain political control.
The political advantage in the redistricting wars has shifted over time. In the 1970s and 1980s, the Democrats controlled more state redistricting efforts, whereas in 2021 the Republicans will have the upper hand, unless things change dramatically in the next two elections. The Democrats then were split between a good government faction that opposed gerrymandering in principle and pragmatists who defended it for political reasons. The Democrats now are a more united front, believing for both principled and pragmatic reasons that partisan redistricting must be curbed.
Perhaps the most important changed contemporary condition is the conjunction of race, ideology and party—what political scientists call party sorting. In the earlier period, there were more conservative Democrats (especially from the South) and liberal Republicans (especially from the Northeast), but the numbers of both have dwindled. The racial divide between the parties has also increased, which has important implications for the separate lines of reasoning the Court developed in recent decades for partisan and racial gerrymandering.
While racial and political line-drawing biases are both potentially justiciable violations under the Equal Protection Clause, the Court found a manageable standard for determining the racial but not the political cases. The racial bias problem could draw on the legacy of slavery and racial discrimination, the Reconstruction Amendments and the Voting Rights Act of 1965. It was also easier to identify unfairness when a group is systematically excluded from power than it is to determine fair allocation of seats between two groups that regularly rotate in and out of power no matter the particular redistricting circumstances.
The most intuitive standard of fairness is proportional representation: each party or group should get a share of seats equal to its share of votes. The problem is that the Anglo-American single member, simple plurality system does not usually yield proportional results. Moreover, there is nothing in the U.S. Constitution that even remotely suggests that principle. Consequently, the Supreme Court has clearly stated that there is no right to proportionality.
Political scientists attempted to come to the rescue several decades ago by proposing an equal treatment principle called partisan symmetry; that is, a party should get roughly the same number of seats as the other party if it were to achieve the same vote share as the other party. But this determination relied on lots of statistical conjecture and computational complexity. In the end, the Court did not bite.
A new generation of scholars is now trying to persuade the Court to adopt simpler measures (for example, the mean-median difference and the Efficiency Gap), but the Court still might not bite. The central problem is this: If you adopt any of these measures, you still need to determine the cutoff value between a fair and an unfair redistricting plan, and no one has suggested a good way to do that.
The plaintiffs in the Gil v. Whitford case recommended that the Court compare the results of their Efficiency Gap measure in a given state to the average score across all states. But critics rightly pointed out that demographic circumstances vary widely across the United States, and that a national average would fail to distinguish between natural gerrymanders (especially the high, inefficient concentration of minorities in urban areas) and artificial ones created by the line drawers. This problem may eventually be solved by advances in computer algorithms that will allow us to determine the degree to which any given redistricting plan is an outlier in partisan bias as compared to all possible plans that a state could have adopted.
But even with such a powerful tool, the critical question remains: how much partisan bias is too much? Should the standard be no worse than 95% of all possible plans? 90%? 80%? And how does the Court choose the standard? The process of figuring this out would draw the Court into a political thicket deeper and darker than the one they barely escaped from in Bush v. Gore.
The racial redistricting landscape is also more complex, and this might affect the Texas case, Perez v. Abbott. In the distant past, racial motives could be separated from political ones because most of the early racial discrimination cases involved the protection of white Democratic incumbents from minority challengers, and most of the evidence came from Democratic primary elections. Now, if minorities are cracked or packed along party lines, the hard question to answer will be whether it was primarily for racial or political reasons, or both.
In the end, as always, a political question requires a political answer. Every electoral system design involves political choices, whether the subject is voter eligibility, seat allocation rules, or redistricting. The Democrats can stop Republican gerrymanders very easily by winning at least one legislative house or the Governor’s office in as many states as possible. Blocking partisan gerrymanders is easier than getting enough power to pull one off. President Trump is certainly doing his part to help them with his many unforced errors. If the Democrats cannot achieve that, then maybe the country is sending them a policy signal that they should address instead.
Of course, the Democrats could do even better than that over the next four years and gain so-called “trifecta” control in many states. Will they then in office adopt the same political fairness standards they are pleading for out of office? Or is redistricting fairness between the parties really just a matter of political perspective, as the Court has long suspected?