Walters: On gerrymandering case, you be the judge

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Steven Walters
Tuesday, October 3, 2017

You’re a U.S. Supreme Court justice hearing arguments in a major case from Wisconsin, so put on your robe.

The issue: The U.S. Supreme Court routinely tosses out redistricting maps, which draw the boundaries of U.S. House and legislative districts, that discriminate against minorities.

Today, it will hear arguments on whether a new standard—districts that blatantly discriminate against voters from one party or the other—should also be illegal. Challengers to Wisconsin’s 2011 Republican-drawn maps say they had illegally high “efficiency gaps” that stacked so many Democrats in a minority of districts, and so many Republicans in a majority of districts, that Republicans had an unconstitutional advantage.

Starting with an argument from those demanding new districts, here is what you will likely hear today:

Challengers: “The truth is that in recent years the two major political parties, leveraging the technologies of the modern age, have intentionally and systematically excluded each other from state legislatures like never before. Democrats rigged the maps in Illinois, Maryland and Rhode Island, while Republicans did so in Wisconsin, Michigan, Ohio, Pennsylvania and North Carolina.”

State of Wisconsin’s response: “The Wisconsin Legislature engaged in partisan gerrymandering early in the state’s history. In 1868, the Republican Legislature ‘gerrymandered’ the congressional districts to ensure that five of six Wisconsin House of Representatives members were Republicans. When Democrats gained control of the Assembly, they employed similar measures.”

Challengers: “This partisan gerrymandering has, in their states and across the nation, sounded the death knell of bipartisanship. When maps have been gerrymandered, candidates and legislators need worry only about primaries, which are increasingly won by politicians who cater to the far ends of the ideological poles. The resulting malice and dysfunction are precisely the opposite of the ideal to which our democracy aspires.”

Response: “(Challengers) would also create an unthinkable imbalance, making allegations of partisan gerrymandering more legally powerful than claims even of racial gerrymandering.

Challengers: “As those in power grow accustomed to choosing their own voters, they stop treating the people as constituents to whom they must answer. Meanwhile, legislators in safe districts ignore constituents who support the other party because the only election that matters is the primary.”

Response: “It is possible that a high ‘efficiency’ gap indicates nothing except that one party beat the other party in several close elections—a fact that says nothing about whether a map itself is too ‘partisan’.”

Challengers: “Gerrymandered districts often divide communities, making it next to impossible for legislators to represent community interests, and leaving voters confused…. [Former Wisconsin Rep.] Amy Sue Vruwink recounts how, after her district was redrawn, former constituents continued calling her for help, not realizing they had been gerrymandered out of her district.”

Response: “(Challengers’) view of voting—regarding ballots as economic transactions, valuable only when ‘efficiently’ cast—distorts the role that votes play in our democracy. Democratic voters concentrate in big cities. The (challengers’) social-science approach would sow chaos. Each legislatively drawn plan would be immediately challenged in federal court. There would be no way for any legislature to know what metric would guide the inevitable future trial.

Challengers: “In today’s data-driven era, legislators who wish to secure their party’s hold on power need only reach out for the block-by-block voter information and sophisticated computer programs… Take, for example, the Wisconsin Assembly. In the 2012 elections, Democrats won their districts by an average vote of 68.8 percent, which netted 39 Assembly seats, while Republicans were able to win far more seats (60) by creating districts with a smaller, but still comfortable, margin of 59.7 percent.”

Response:“The Legislature’s map drawers took politics into account as one of many factors. The map-drawers first drew and then ‘locked’ in Milwaukee districts to comply with the Voting Rights Act. Then they carefully designed their draft maps to comply with equal-population requirements, as well as traditional redistricting principles, such as compactness, contiguity and respect for political-subdivision lines.”

Challengers: “Modern-day gerrymandering by both parties represents a grave and growing threat to the Constitution’s vision of democracy. The Court has not hesitated to step in when incumbents seek to entrench themselves at voters’ expense or otherwise disenfranchise those they do not like.”

Response: “Federal courts lack jurisdiction to decide political questions… This court has never found that a state legislature engaged in unlawful partisan gerrymandering.”

Now, Justice Badger, what’s your decision?

Steven Walters is a senior producer with the nonprofit public affairs channel WisconsinEye. Contact him at stevenscwalters@gmail.com

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