Everyone, even the staunchest conservatives on the court, admit that gerrymandering — the political party in power drawing district lines to favor their party’s future electoral success — is distasteful and hampers democracy. The particular Wisconsin case before them stands as a stark example — the GOP legislative / executive majority redrawing maps such that in 2012 they received a minority of statewide votes for the legislature, but still won 60 of 99 legislative seats.
The debate seems to be what the heck SCOTUS can do about it (or, it appears from Gorsuch’s questions and comments, are they even allowed to do anything about it). Given the very narrow margins in anticipated votes (Anthony Kennedy will almost certainly be the swing here, yet again), if they do decide against Wisconsin, we can’t expect any sort of sweeping dictate of using non-partisan commissions and the like. The test for whether unallowable gerrymandering has occurred will need to be clear (so that the courts don’t get immersed in challenges to every redistricting), and the remediation as unintrusive as possible (in keeping with the states fundamental Constitutional power to manage their own elections, within the overarching bonds of other principles such as “one man, one vote”).
It’s interesting, if perhaps disheartening, that there seems to be as much debate within SCOTUS about this from an institutional basis as discussion of the merits and Constitutional principles. Roberts, in particular, seems tugged more by not wanting the courts to seem too political (or be overwhelmed with future suits), but also being concerned that doing nothing will send its own message about SCOTUS partisanship or impotence.
I truly hope that they manage to find a majority path to actually doing something. Regardless of the party doing it [1], gerrymandering is fundamentally anti-democratic, and a clear exercise of power breeding corruption. Its expanded and systematic use is a challenge to the very nature of our society and government and will, in the end, present an existential danger to both.
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[1] Yes, both parties have done it over the years, to their discredit. That doesn’t make it somehow wrong to prevent it; on the contrary it makes it all the more critical to do so. That said, the current wave of gerrymandering stems from the significant statehouse wins the GOP made in 2010, and their use of the latest technology to maximize their ongoing advantage following the 2010 census decennial redistricting. This imbalance has meant that Republican defenders of the practice can argue both that “both sides do it (so don’t pick on us when we do)” and “this is a partisan effort by the Dems against the GOP (because overturning this will hurt us most)”.
Partisan Gerrymandering: How Much Is Too Much?
The Supreme Court heard oral arguments Tuesday in a gerrymandering case that could have sweeping political consequences.
