A good friend recently reminded me of the importance of this gerrymandering case in Wisconsin that is coming up for adjudication by the Supreme Court. While I was familiar with the case, I must admit I was not even aware whether it was to be adjudicated by the Wisconsin Supreme Court, or by the U.S. Supreme Court. It is the U.S. Supreme Court that will be deciding this case on appeal and that process began this week.
The case is named Gill v Whitford. William Whitford is a University of Wisconsin professor and the lead plaintiff in this case. Beverly Gill is the Wisconsin state elections board chairperson.
I have now done some more research which I would like to share. I freely admit to being no kind of political scientist or expert on gerrymandering. However, that may work in my favor in that I may be able to explain the basics of gerrymandering in more layman’s terms, and thereby perhaps make it less mysterious. That is my hope anyway.
While the term gerrymandering may be familiar to some, it may only be understood in the abstract. Currently, my guess is that when many hear the term, their immediate reaction may be that it is just Democrats complaining because they do not have a current majority in most state Houses, and also in the U.S. House of Representatives.
First, here’s a bit of likely useless trivia. Where does the word “gerrymander” come from?
- It was coined by a newspaper in Boston way back in 1812. Massachusetts redrew its district lines and their governor at the time was a man by the name of Elbridge Gerry. One of the districts that was redrawn was said to look something like a salamander. So, the two were joined by the newspaper and the term gerrymander was first coined.
The practice of gerrymandering has been around since the formation of the first U.S. Congress. It has been used and abused over the past two centuries to benefit whichever party happened to be in power at the time when districts were mandatorily redrawn every ten years after each new census.
It was Republican gerrymandering back in 2010 that predominantly gave us the district maps we have had for the past seven plus years. The Republicans dominated the mid-term elections after Obama’s election in 2008 and, after the 2010 census, they were the party which was able to control much of redistricting around the United States.
But gerrymandering is by no means uniquely Republican. However, what was unique to the last redistricting was the use of sophisticated computer programs that were used to draw very specific lines (but hardly straight ones) that benefited the Republican party to the max, or at least so says the plaintiff in Gill v Whitford. One can only imagine that those sophisticated programs have grown even more so over the past decade.
When does the next redistricting occur?
Since the next redistricting is coming up after the 2020 census, these upcoming elections are crucial in how those districts will be drawn. If the Republicans retain the great representational advantage that they now have, then it will only get worse unless the Supreme Court throws out the current Wisconsin district lines and makes them redistrict using some sort of more “fair” formula.
Even if the Supreme Court rules in the plaintiff’s favor, which would certainly favor the Democrats, the decisions as to how to enforce “fair” redistricting will be crucial. Ideally, neither party should be able to draw districts with the sole intent of giving them a completely unfair advantage.
While there are various rules that apply to redistricting, there are basically two big ones.
- The population of each district must be as “nearly equal as practicable”.
- Each district must be contiguous. All areas within the same district must connect in some way.
Gerrymandering – Before and After
I created the following two slides to visually demonstrate how even if the number of Democratic and Republican voters in a given area is relatively equal, the drawing of district lines can greatly affect the likelihood of a district voting one way or the other.
In this first slide, I have created a pretty basic, rather clean-cut example. In the four districts on the left, the lines are drawn so that each of the four districts has about the same amount of Democrats and Republicans. One would expect the elections to be fairly competitive in the four districts as they are drawn on the left.
However, the right shows an example of how that same area can be redrawn, also into four districts, but now where three of the districts will be predominantly Republican while only one will be predominantly Democratic.
Do you think that is an absurd example?
Let me show you a couple examples of actual, gerrymandered districts in the United States today.
Note how zig-zag and finely drawn those lines are, and particularly how crazy the Illinois district looks. That district was actually drawn by Democrats in order to create a predominantly Latino district. Only, in order to get enough population, they had to somehow join two separate, Latino areas – the one on the north being Puerto Rican and the one on the south being Mexican. They are joined together literally by only a grassy strip on the west that separates two expressways.
These type of finely redrawn lines are most often based upon the use of computer programs which factor in total population, and also know the ethnicity, voting history, income level, education level and addresses for the people living in those areas. So by putting in the right parameters, the computer program can design lines which effectively segregate very similar potential voters into the same, specific district. Not pretty, is it – particularly if you happen to be in the party that is being disadvantaged.
In Gill v Whitford, the plaintiff contends that the way the districts are currently drawn in Wisconsin, even in a 50/50 election, Republicans would almost always win at least 60 of the 99 state Assembly districts. The plaintiff is contending that the way the districts are drawn is negating the value of a person’s vote in those districts. In 2016, Trump barely won the popular vote in the state of Wisconsin and the amount of Democratic and Republican votes in Wisconsin statewide elections was essentially the same as well. However, Republicans won 64 of the 99 Assembly districts (64%). 63 of those same districts were also won by Trump.
Arguments have begun
Supreme Court Chief Justice John Roberts said during initial arguments on Oct 3rd, that he is wondering aloud that if the Supreme Court rules in favor of the plaintiff (Wisconsin Democrats), the Democrats will benefit in the upcoming elections and then the Supreme Court will be blamed for favoring the Democrats.
Paul Smith is the lead attorney for the plaintiff. If I were him, “on the inside”, I’m thinking,
“Justice Roberts, you’re worried about this court being accused of favoring the Democrats? Give me a damn break.”
But “on the outside”, I would like Attorney Smith to at least say,
“Justice Roberts, is your concern to judge this case based upon the law, and upon what is right or wrong in regard to the U.S. Constitution? Or is your concern to not make a ruling that may be considered to favor one side or the other? Also, if I may add, regardless of any individual ruling this court may make, I think you may rest assured that this current court will never be in danger of being accused of favoring the Democrats.”
Justice Anthony Kennedy, appointed to the court by Ronald Reagan in 1987, is a conservative but he is the closest thing that there is to a “swing” vote on the court. Typically, but not always, he sides with the conservatives on more fiscal issues but sides with the liberals on more social issues. That is the main reason why there was so much concern by Democrats that he might retire when the Supreme Court recessed at the end of June, and relief when he did not.
In this current court case, early indications may be that Kennedy is siding with the plaintiff against the current gerrymandered assembly districts in Wisconsin. However, it is very early, and reading those types of tea leaves at this point is always a dangerous proposition.
If Gill v Whitford is decided in favor of the plaintiff, against the current Wisconsin districts, it is likely that there will be many more challenges to the district maps in other states around America.
My personal hope is that if this case is decided upon in favor of the plaintiff, a system of rules governing redistricting will be created that seeks to ensure that elections are decided upon by voter turnout, and by the differences between the candidates – not by how ridiculously rigged the districts are set up.
Keep an eye on Gill v Whitford.
I have been informed by one of my readers that California voters approved back in 2008, a method to address gerrymandering concerns.
Rather than have elected legislators in charge of redrawing the districts, which inherently will be very political, California has created a bipartisan commission which is responsible for doing the redistricting. That commission is made up of an equal number of Democrats, Republicans and non-affiliated members, which have been chosen by lottery from a pool of qualified applicants. Their recommendations for redistricting are then subject to final approval by, once again, a bi-partisan commission of 3 Democrats, 3 Republicans and 3 from neither party.
What a concept, huh? It’s almost like not allowing legislators to vote on their own pay raises. Wait, they can do that? Uh huh.
Here is a brief explanation of Proposition 11 in California …
Update: June 18, 2018.
The Supreme Court punted this case back to Wisconsin, effectively allowing the current Gerrymandering to remain in place. However, to give them some credit, they did so on technical issues, and basically provided the plaintiff with a road map on how to proceed when refiling.
Here is an article about that ruling …
Update: July 23, 2018.
If Kavanaugh becomes the next Justice, refiling or not with the technical issues addressed, I don’t see a lot of hope for this case of Gerrymandering being overturned.