In June, the U.S. Supreme Court declined to decide on Gill v. Whitford, a case regarding the constitutionality of partisan gerrymandering. Before even considering the arguments, the justices handed the issue back to Wisconsin federal district court to give the plaintiffs an opportunity to better formulate their standing or to bring the case to trial.
This move suggests the issue is not resolved, and will most likely be brought back to the Supreme Court. Barry Burden, University of Wisconsin political science professor, said increased technology and partisanship nationwide has made gerrymandering an even more important issue in recent years.
“Gerrymandering is the intentional drawing of legislative districts lines to advantage a specific group over another by distorting how votes are translated into seats,” Burden said. “Although it has been done to some degree for most of U.S. history, it has become more insidious due to improving technology and greater animosity between the political parties.”
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In other words, gerrymandering allows those in power to choose exactly where lines are drawn in order to tailor the vote to benefit them. The action concerns Burden because it distorts the democratic process of representation by skewing outcomes in favor of certain parties or groups, he said.
David Canon, a UW political science professor, elaborated on the difficulties the prosecution might face in the event the court hears the case again. One major issue he pointed out was the recent resignation of U.S. Supreme Court Justice Anthony Kennedy.
“With Justice Kennedy’s retirement, I think it is a lot less like that the majority will rule that gerrymandering is unconstitutional, because Kennedy seemed to be the most sympathetic of the five [conservative justices] to considering this as a constitutional problem,” Canon said.
Professor Canon also predicted two ways the new case could go.
One way, Canon said, could include the plaintiffs providing more specific evidence of gerrymandering being harmful and unethical. The second way could include a similar presentation of the case, but with a new plaintiff — such as the Democratic Party, so as to be represented by a larger entity.
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“This is a basic question of fairness. One way to think of this is to say ‘would anyone think it is fair that there are two different sets of rules applied to two different parties?’ Because that is the issue we are dealing with here,” Canon said. “For one party, they would have to win 53 percent of the vote, while the other party would have to win 47 percent of the popular vote. That is basically the system we have in place in Wisconsin.”
Depending on how district lines are drawn, Canon said a candidate for office could receive fewer overall votes and yet still claim victory on election night.
Canon said it does not make sense to have politicians drawing their own lines, as it is “an inherent conflict of interest.” He also referenced other professions, in which safeguards are in place to prevent conflicts of interest from potentially harming the public.
Canon laid out what a gerrymandering-free Wisconsin may look like, and what would take its place in elections. He said taking the power of drawing district lines out of the hands of politicians and placing it with nonpartisan commissions, such as what Iowa has done, would be an effective solution.
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Since the 1970s, Iowa has not allowed politicians to draw their own district lines and instead entrusts that task to politically unaffiliated commissions.
Robert Yablon, a UW law professor, shared Canon’s view that it is unlikely the Supreme Court will move to eradicate gerrymandering completely. As a result, Yablon said this places the responsibility of fixing the system on ordinary citizens.
In addition to citizens taking the lead on pressuring legislators not to practice gerrymandering, Yablon also said change could come through the political process by electing officials who are committed to drawing districts fairly.
Experts agree Gill v. Whitford will likely resurface, but it is currently uncertain what the new trial will look like.
“I think there are two ways the case could go,” Canon said. “One is to get the district-by-district evidence … The second prong of the strategy will be … that they need a different plaintiff and a different constitutional argument.”