WASHINGTON — The U.S. Supreme Court is set to rule this month on two gerrymandering cases that will have a massive impact on the partisan balance of American politics for the next decade.
The decisions in Rucho v. Common Cause, which deals with the drawing of North Carolina’s congressional districts, and Benisek v. Lamone, which involves Maryland’s, will help shape the balance of power in Congress and in state legislatures.
Congressional districts will be redrawn after the 2020 census, and so from 2022 onward, the maps shaped by the court’s decision this month will impact the entire universe of policy issues to be hashed out by lawmakers across the country, from tax policy to climate change to gun safety.
The high court has “never clearly said that partisan gerrymanders are unconstitutional,” Thomas Wolf, an expert on the issue at New York University’s Brennan Center for Justice, said in an interview on the Yahoo News podcast “The Long Game.”
The big question for most court watchers now is whether it is now ready to overcome its traditional hesitance to weigh in on how state officials draw election maps, which are updated every 10 years after the national census results are in.
The court’s reluctance stems from its long-held belief that gerrymandering is “the most political of things that it could be weighing in on, because it feels like it's dictating the outcome of elections,” Wolf said.
But Wolf and many others say that extreme gerrymandering, which the Brennan Center defines as changes to a map that “lock in advantages for both parties with unprecedented precision,” has become a menace to society over the past decade.
“This decade, gerrymandering has helped Republicans. In the future, it may help Democrats,” a 2018 Brennan report concluded.
Gerrymandering is not new to American politics. The name is over 200 years old. In 1812, Massachusetts Gov. Elbridge Gerry signed a bill in the state legislature that redrew the map for state senate seats. One of the districts was so bizarrely shaped, in an effort to give his party an advantage by filling it with voters supportive of his party, that critics likened it to a salamander.
Thus the practice of creating legislative districts for elections that are shaped purely to advantage one side over another became a mix of his last name and the creature: Gerry-mandering.
In the last decade, however, the practice has gone into hyperdrive, Wolf said, and gave several reasons for this trend.
“First is that the technology and the data necessary to do these kinds of things got a little bit more sophisticated. … People can look at millions, or even billions of different alternative maps, and find the one that advantages their party the most in the safest way,” Wolf said.
Second, he said, party operatives got smarter about how to most efficiently advantage themselves.
“There's been kind of a statistical revolution in sports, where people figured out that maybe the normal way of doing things isn't always the best way of achieving your ultimate goal. Something similar happened in the redistricting space,” Wolf said. “The way things used to go is if you wanted to gain control of Congress for your party, you'd pour a lot of money into congressional races … and that's incredibly expensive.”
“What operatives figured out ahead of 2010 was that it's actually much more cost-efficient to put little bits of money in cheaper state legislative races to flip control of the legislature, and then get control of the redistricting process. Once you have that power, you can draw the congressional maps however you want to advantage yourself. So it's sort of a cheaper way to achieve party domination,” he said.
Finally, “in the absence of a red light from the court, gerrymanders this decade took it as a green light to manipulate the maps any way they wanted, and we ended up with these really extreme maps.”
Some of the worst congressional maps, according to the Brennan report, are found in Michigan, North Carolina, Ohio and Texas.
In North Carolina, for example, Brennan projected that Democrats needed 52 percent of the statewide vote to even get four out of the state’s 13 congressional seats. They currently have only three.
The other case before the Supreme Court is the map for the Sixth Congressional District in Maryland, which covers the western portion of the state. Democrats drew the district map in such a way that a three-judge panel ruled that the map violated the First Amendment because it “meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice.”
The North Carolina case has been a poster child for gerrymandering, with Republican lawmakers at one point stating publicly that they drew the maps to give themselves an advantage, and citing the Supreme Court’s lack of censure of the practice as justification.
“I acknowledge freely that this would be a political gerrymander, which is not against the law,” said Republican Rep. David Lewis, chair of the state House Redistricting Committee,
“I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country,” Lewis said.
But a year ago, a three-judge federal panel ruled that North Carolina’s map was unconstitutional. It was part of a spate of rulings by federal courts against maps that had been gerrymandered so aggressively that the courts felt compelled to step in.
“Prior to 2015, 2016, people normally lost gerrymandering cases,” Wolf said. “Since then there have been wins all over the country: Wisconsin, North Carolina, Maryland, Michigan, Ohio, Pennsylvania. And what all these cases are doing is sort of converging around really easy-to-understand and easy-to-employ ways of smoking out the worst maps.”
“Part of what they're doing is demonstrating to the Supreme Court that this is really something that courts can do,” he said.
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