Symposium: The Supremes put off deciding whether politics violates the Constitution

Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and former counsel to the Assistant Attorney General for Civil Rights at the Justice Department. He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

Election lawyers, state legislators and political junkies were surely all disappointed on June 18 when the Supreme Court, in a unanimous opinion authored by Chief Justice John Roberts, avoided deciding whether partisan gerrymandering violates the Constitution. Instead, it sent the Gill v. Whitford case arising out of Wisconsin back to the lower court, holding that the plaintiffs had failed to demonstrate Article III standing because they had not shown any specific, individual injury to their right to vote.

The Supreme Court also issued a per curiam opinion in a similar case out of Maryland. In Benisek v. Lamone, the court held that the district court had not abused its discretion in denying a preliminary injunction to the plaintiffs while awaiting the court’s decision in Gill.

In remanding the Gill case, the justices temporarily avoided opening up a political thicket that could have flooded federal courts with redistricting claims, transforming them “into weapons of political warfare,” as Justice Samuel Alito put it last year in Cooper v. Harris, a North Carolina redistricting decision.

The plaintiffs in Gill were 12 Democratic voters who challenged the state legislative redistricting plan drawn by Wisconsin’s Republican-controlled legislature. They alleged that the statewide plan unfairly favored Republican voters and candidates by “cracking” and “packing” Democratic voters in order to diminish “the ability of Wisconsin Democrats to convert Democratic voters into Democratic seats in the legislature.” As they explained to the Supreme Court:

Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins.

The lead plaintiff, William Whitford, conceded at trial that because he lives in a heavily Democratic district in Madison, the statewide redistricting plan did not affect his “ability to vote for and elect a Democrat in [his] district.” But he and the other plaintiffs argued that whether or not they lived in a packed or cracked district, they had been harmed because Democrats statewide “do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly.” Such partisan gerrymandering, the plaintiffs claimed, violated their First Amendment right of association and their 14th Amendment right to equal protection.

According to the plaintiffs, the “degree to which packing and cracking has favored one party over another” could be determined by a standard they called the “efficiency gap” that supposedly measures “wasted votes.” “Wasted votes” are votes “cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win.” Because the efficiency gap is ultimately based on comparing the number of seats in a legislature with the number of statewide votes that different parties get, it is in essence a call for proportional representation.

Wisconsin’s experts testified that the efficiency gap is an “unreliable” measure of “durable partisan advantage” and that political geography currently favors Republicans over Democrats in the state. That is because “Democrats – who tend to be clustered in large cities – are inefficiently distributed in many parts of Wisconsin for purposes of winning elections.”

The three-judge district court panel found in favor of the plaintiffs, with a dissent by Judge William Griesbach. He pointed out that under the Supreme Court’s precedents, a partisan intent to “benefit one party rather than the other in districting ‘is not illegal, but is simply the consequence of assigning the task of…

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