The justices puzzle over how to rein in partisan redistricting

ON OCTOBER 3rd, the Supreme Court considered an age-old and now technologically refined scourge of electoral politics known as gerrymandering—the practice by which state legislators of one party delineate contorted district lines to entrench their power and rope out rivals. The term, coined in the early 19th century, mixes “salamander”— the shape of some districts after redrawing—and “Gerry” after the governor (Elbridge Gerry) who in 1812 signed a bill redistricting Massachusetts to benefit his party.  Gill v Whitford concerns precision-engineered legislative maps in Wisconsin, districts no one stood up to defend on the merits. Even Justice Samuel Alito, a sure vote to uphold the skewed maps, said that gerrymandering is “distasteful”. The central question on the justices’ minds was whether courts are equipped to police the process by which states draw their maps, and if so, how exactly they should determine when draughtsmen cross a line.

Two worries about the state of American democracy—one about elections, another about courts—animated the hearing. Paul Smith, the lawyer challenging Wisconsin’s electoral districts, sounded the first alarm. Unless the justices affirm a lower-court’s ruling that Wisconsin violated America’s constitution when, in 2011, it redrew lines to entrench a Republican majority for years to come, they will give states a “free pass” to “effectively nullif[y] democracy” when legislatures redraw maps following the 2020 census. We are “at the cusp of a really serious problem”, Mr Smith told the nine jurists. Using sophisticated computer modelling and thousands of alternative maps, Wisconsin Republicans mustered new lines delivering them nearly two-thirds of the state Assembly seats in 2012 and 2016 despite a voting bloc comprising only about half of the electorate. That may be the tip of the iceberg. A “festival of copycat gerrymandering the likes of which this country has never seen” awaits America, Mr Smith warned, unless the justices resolve to act now.

Denying voters of one party the ability to elect their favoured leaders was only one concern on the justices’ minds. Another was aired by an unusually candid Chief Justice John Roberts, who explained his “main problem” late in the hearing. If the Supreme Court says, for the first time, that partisan gerrymandering may violate voters’ First Amendment right to free association or 14th Amendment right to equal protection, there will be “claims raised around the country” and they will wind up—repeatedly—in the justices’ laps. Resolving those complaints—by upholding or striking down a gerrymandered map—will push the court directly into the political fray, the chief fretted. When you then ask “the intelligent man on the street” why a particular party won an election, the Supreme Court’s explanation of its gerrymandering jurisprudence will be greeted as “a bunch of baloney”, the chief lamented. People will think it’s because the Supreme Court “preferred” one party to another. And that perception will bring “very serious harm to the status and integrity of the decisions of this court in the eyes of the country”.

After the chief’s soul-baring soliloquy, Justice Stephen Breyer reminded his colleague that there are rival considerations. If one party “loses a majority of votes” yet “still controls the legislature”, he said, “that doesn’t seem fair” to the average American, either. But the rub remained: finding what Justice Anthony Kennedy has called “a workable standard” distinguishing acceptable from extreme doses of partisanship. In Vieth v Jubelirer, a 2004 case, four justices rejected the notion that courts were equipped to monitor partisan gerrymandering at all while four others floated a quartet of standards to do just that. Justice Kennedy, from his usual perch in the middle, split the difference. None of the proposals on offer avoided “substantial intrusion into the nation’s political life”, he wrote, but curbs on gerrymandering may be imposed “if some limited and precise rationale” one day emerges.

The plaintiffs in Gill say that day has arrived. “Social science tools now allow courts to diagnose partisan gerrymanders with accuracy and precision”, according to an amicus brief from Keith Gaddie and Bernard Grofman, political scientists who have helped engineer district maps. (In a twist, Mr Gaddie worked with Wisconsin Republicans to construct the gerrymander now under the justices’ microscope, something he now seems to regret.) The watchword is “asymmetry”: if one party can win, say 65% of legislative seats by garnering 53% of the statewide vote, the other party should have the same opportunity. If it does not, that’s a sign the gerrymander unconstitutionally deprives voters of their representational rights.

Mr Smith offered a menu of three ways to calculate asymmetry: the “median-mean” and “partisan bias” measures and the “efficiency gap”, a metric developed by Eric McGhee, a political scientist, and Nicholas Stephanopoulos, a law professor who sat in the audience at Tuesday’s hearing. In all elections, the winning candidate gets more votes than he needs to win; these are all so-called “wasted votes”. Subtract one party’s wasted votes from the other’s, and then divide that difference by the total number of votes cast. This yields an efficiency gap. If it is large enough (7% or higher, they say), one party can be said to hold an unconstitutional “systematic advantage” over the other. In Wisconsin, the efficiency gap has been as high as 13%.

Chief Justice Roberts dismissed this math as “sociological gobbledygook”. Justice Alito sneered at the research, too, suggesting that one paper by a “young researcher” is hardly an adequate basis for the justices to meddle in elections across the country. Justice Neil Gorsuch pooh-poohed the plaintiffs’ approach as “a pinch of this, a pinch of that”, without any guidance as to how to use the various social-science tests.

Justice Kennedy was silent—perhaps tellingly—during these exchanges. He asked a series of critical questions of Wisconsin’s lawyers early in the hearing, but did not join his conservative colleagues’ attack on the social-science standards. Whether that means Justice Kennedy is ready to vote for limits to partisan gerrymandering remains to be seen, but if his retirement next summer is more than a rumour, Mr Smith’s plea may be ringing in his ears. There will be “serious incursions on democracy if this court doesn’t do something”, Mr Smith told the justices. “This is really the last opportunity”.

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