Redistricting Case Could Profoundly Impact U.S. Democracy

David Sobelsohn Supreme Court Correspondent, Press Associates

A case argued before the Supreme Court October 3, Gill v. Whitford, could have profound ramifications not only for American workers, but for the future of American democracy.

In 2011, for the first time in over 40 years, Wisconsin Republicans controlled the governor’s office and both houses of the legislature. Armed with the 2010 census, sophisticated metrics, and the latest computers, the Republicans -- in secret -- set about redrawing legislative district lines.  

They rejected one map after another as too balanced, too fair to Democrats.  Finally, by packing most Democratic voters into just a few districts, and by scattering other Democrats into majority-Republican districts, the Republicans drew the most partisan map possible.

It worked. In the 2012 election, though most Wisconsin voters voted for Democratic candidates for the State Assembly, Republicans seized 60 of its 99 seats.

Republican legislative domination had a calamitous effect on workers’ rights. In 2015, the Wisconsin legislature enacted so-called “right to work” legislation, letting union nonmembers use union services -- collective bargaining and grievance settlement -- without paying for them, denying unions money they need for just such services.  

Then, in 2017, the legislature prohibited Wisconsin local governments from requiring their contractors to hire union workers, banning Project Labor Agreements on taxpayer-funded construction.  

Predictably, Wisconsin unions have suffered a precipitous drop in membership, to
8.1 percent of the state’s workforce -- a drop of 40 percent in just ten years. Membership
dues have fallen nearly 50 percent.

How could the U.S. Constitution permit this?  

In 1964, in its famous one-person, one-vote case, the Supreme Court recognized voting as a fundamental right and found vote dilution a violation of the 14th Amendment.  In 1976, the Supreme Court declared it a 1st Amendment violation for a state to discriminate, in public employment, on the basis of political affiliation.  

Logically, if it’s unconstitutional to discriminate on the basis of political party, and if voting is a fundamental right, it should violate the Constitution to dilute the right to vote on the basis of political party.

But as Justice Oliver Wendell Holmes once wrote, “a page of history is worth a volume of logic.” Gerrymandering -- in which, in effect, representatives choose their voters, instead of the other way around -- dates back at least to 1788. In 1812, a Massachusetts redistricting map, signed into law by Gov. Elbridge Gerry, so distorted one district's borders that, on the map, the district resembled a salamander. That inspired a Boston newspaper to coin the term “gerrymander.”  

Today, 37 state legislatures still draw their own district lines. Historically, convinced they couldn’t devise a "judicially manageable standard," U.S. courts have refused to overturn district maps approved by a state legislature.

But history proves only so much. The 19th century knew nothing of deep data-mining and high-speed computers. Under Wisconsin's current map, the legislature could have a large Republican majority for generations -- even if Wisconsin voters repeatedly vote for Democrats,
as they did in 2012.

At oral argument, several justices expressed alarm at the prospect of a persistent extreme disparity between the party voters support and the party elected to a legislative majority. As Justice Ruth Bader Ginsburg asked, what becomes of our "precious right to vote" if election results are "preordained"?

Wisconsin Solicitor General Misha Tseytlin, and Erin Murphy, representing the state senate, both claimed the Supreme Court has no "workable standard" to identify unconstitutional gerrymanders.  But both attorneys, responding to a question from Justice Anthony Kennedy -- whose vote likely will determine the outcome -- conceded state law couldn't blatantly require district lines to advantage one particular party.

If so, as Justice Elena Kagan pointed out, it's just a question of intent. Courts frequently look for legislative intent – what lawmakers wanted to accomplish -- beyond the words of a law.

To Chief Justice John Roberts's concern about a flood of legal challenges, Justice Stephen Breyer proposed an easily applied requirement to cause most cases' quick dismissal: As in Wisconsin, did one political party control the entire reapportionment process?

Justice Sotomayor added that, in the Wisconsin case, every proposed test points in the same direction: This was the "most extreme map they could make." Paul Smith, the attorney for the Democratic voters who challenged Wisconsin’s map, added if the Supreme Court approves even this district map, after the 2020 census "you're going to have a festival of copycat gerrymandering" so extreme that it "effectively nullifies democracy."

A decision is expected by spring of 2018.