by Tony Wyman

The U.S. Supreme Court is about to take up a gerrymandering case from Wisconsin that could have an enormous impact on American political elections for decades to come.

The case, Gill vs Whitford, is under appeal after a lower court decided Wisconsin’s 2016 redistricting plan constituted an “unconstitutional partisan gerrymander” and gave the GOP an unfair advantage in future political races.

What is gerrymandering?

Wiki defines gerrymandering as, “in the process of setting electoral districts, gerrymandering is a practice intended to establish a political advantage for a particular party or group by manipulating district boundaries. The resulting district is known as a gerrymander (/ˈdʒɛriˌmændər/).”

The namesake of this political strategy is a 19th century politician, Massachusetts Governor Elbridge Gerry (1744–1814), the first recognized practitioner of gerrymandering.

The present case, Gill vs Whitford, is the first major gerrymandering case the Supreme Court has accepted in more than 13 years since the Court sided with Republicans in a plurality opinion (an opinion where no single opinion receives a majority of the vote) in Vieth vs. Jubelirer, a Pennsylvania redistricting case.

Most Import Election Case in Decades

Professor Josh Douglas of the University of Kentucky School of Law, a specialist in election law, speaking to CNN about Gill said, “This will be the biggest and most important election law case in decades. However the Court rules will affect elections for years to come.”

Gill vs. Whitford  could have a major impact on future redistricting decisions because the Court may define what an acceptable amount of gerrymandering is when a state redraws its political lines.  In past cases, the Court has said that “too much” gerrymandering is unconstitutional, but they failed to define precisely how much was too much.

If the justices define the limits a state can reach before crossing into unconstitutional territory, the ramifications in future elections could be significant.

Professor Douglas, who wrote a paper for the Kentucky Law Journal in 2016 where he suggested the death of Justice Scalia and the appointment of a replacement justice might “impact the doctrine and theoretical underpinning of cases involving redistricting,” said, in an interview with Bloomberg that the 2004 Vieth vs Jubelirer case “didn’t answer questions as much as it provided more of them.”

One of those unanswered questions was how much gerrymanding is too much?

How Much is Too Much?

In Vieth, the four conservative justices on the Court at the time (Scalia, Rehnquist, O’Connor and Thomas) said there was no standard by which to test the partisanship of a gerrymander and the decision about what was fair and what wasn’t should be a political, not legal, one.

The four liberal justices (Stevens, Souter, Ginsberg and Breyer) disagreed and each came up with a standard by which to measure the constitutionality of the gerrymander.

Justice Kennedy, subject of recent swirling rumors about impending retirement, wasn’t convinced by either of the two arguments, stating he didn’t like any of the standards proposed by the liberal justices, but also said he wouldn’t close the door to the acceptance of a standard established sometime in the future.

In the end, Justice Kennedy concurred with the conservatives and the Supreme Court allowed the lower court ruling to stand that the Pennsylvania redistricting was constitutional.

If the Court, in their Gill ruling,  establishes a standard by which the legality of gerrymanders can be measured, it could blunt, to some extent, the ability of the party that controls state legislatures from being able to use their majorities to redraw lines in their favor.  Currently, Republicans control 32 state legislatures and Democrats control only 12, with six split between the two parties.

Every ten years, state legislatures redraw their voting districts, with the party in power deciding where the lines go.  To increase their ability to win and hold federal and state seats, parties draw the lines in ways that maximize the number of friendly voters in as many districts as possible.  This often leaves congressional districts looking like Rorschach tests as parties draw districts on political lines rather than on geographic ones.

As more like-minded people are drawn together, districts become more politically homogeneous and the candidates they elect become more strident and less moderate.  Eventually, gerrymandered districts become strongholds for the party that drew them, rarely, if ever, electing a representative or voting for a presidential candidate from the other party.

To stay in office, elected officials in these districts only have to focus on the political will of their party members, especially those more committed and, often, more extreme voters who turn out for primaries.

Without the moderating influence of having to respond to a more politically diverse group of voters, elected officials become more extreme as they become more heavily influenced by the passionate activists in their districts.

Disappearing Swing Districts

Over time, fewer and fewer districts come into play each election cycle as “swing districts,” those districts where the result of the presidential race would be decided each race by 5-percentage points or less.

In 1992, the number of districts that were swing districts was about 25% or 103, according to Nate Silver of FiveThirtyEight.com.  By 2016, that number had decreased to just 37, meaning that 398 House districts weren’t in play.

CNN’s Michael Smerconish said this explains “the lack of compromise you see in Congress because there’s no incentive when members represent only the like-minded.”

Political gerrymandering also leads to, what David Wasserman, political analyst for the Cook Report, called “self-gerrymandering.”  Wasserman said that 83% of the decline in swing districts is attributable to factors other than political gerrymandering and told CNN that:

“What’s happening is voters are gerrymandering themselves. They are choosing to live in like-minded areas where the vast majority of their friends and neighbors agree with their political values.”

The Whole Foods – Cracker Barrel Divide

Smerconish pointed to data showing the way voters in districts with a Whole Foods store and ones with a Cracker Barrel, changed their voting behaviors from 1992 with the election of Bill Clinton to 2016 and the election of Donald Trump.

In 1992, the gap between Whole Foods districts voting for Bill Clinton and Cracker Barrel districts that did the same was only 19%.  But by 2016, Donald Trump won 76% of Cracker Barrel districts, but only 22% of Whole Foods one, a gap of 54%.

Whether the Supreme Court can reverse this growing American political segregation or not remains to be seen, but it is likely justices will consider the data that shows gerrymandering is making American politics more divisive, less capable of compromise and much more likely to divide the country than to unite it.