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Partisan Gerrymandering is One Step Closer to the Supreme Court

by Jane Susskind, published

In a move likely to upset Democrats and Republicans at the national level, a federal court-panel has enjoined Wisconsin state officials from using existing district maps and ordered the state to redraw district lines by November 1, 2017. Wisconsin has indicated that it plans to appeal to the Supreme Court, which is required to take the case.

This remedial order comes in response to a recent challenge to the 2011 redrawing of district lines, or Wisconsin’s Act 43.

In Whitford v. Gill, 12 Democratic voters argued that the partisan gerrymandering embodied in Act 43 gave Republicans an unfair advantage, diluting the votes of Democrats statewide. The impact of this decision, therefore, would have the opposite effect in Democratically controlled states.

To prove voter dilution, they cite to the fact that Republicans won roughly 60% of the State Assembly seats, while garnering just 49% of the statewide vote in 2012, and won roughly 63% of the State Assembly seats, while garnering just 52% of the statewide vote in 2014.

On November 21, 2016, the court struck down Act 43 as unconstitutional partisan gerrymandering, signaling a major victory for Wisconsin voters.

“It’s clear the current redistricting process is undermining our democracy and partisan gerrymandering has become the political weapon of choice for legislators to maintain political power,” the Campaign Legal Center, who aided in the litigation, reports.

The remedial action issued last week further protects the rights of voters in Wisconsin by banning the use of existing gerrymandered district maps in all future elections and ordering the state to devise an alternative plan before the 2018 election.

The court, however, failed to define just what that means, and refused to impose an alternative plan or provide detailed instructions for Wisconsin lawmakers.

“It is neither necessary nor appropriate for us to embroil the Court in the Wisconsin Legislature’s deliberations,” the court wrote, instead directing state officials to draft a plan that follows the standards articulated in the November 21, 2016 order.

While this could be viewed as the court’s strict adherence to our nation’s federalist system, it also reflects the longstanding struggle the highest court has had with ruling on the issue of partisan gerrymandering.

For thirty years, the Supreme Court has fumbled on the issue of partisan gerrymandering, declining to adopt a set of manageable standards for the adjudication of partisan gerrymandering cases. This means that while members of the Supreme Court agree that partisan gerrymandering is unconstitutional, they have provided no guidelines as to what counts as “too partisan.”

In 2004, the Supreme Court had the opportunity to articulate a test evaluating “meandering and irregular” district lines that allegedly were drawn “solely for the sake of partisan advantage.” Written by Justice Scalia, the plurality in Veith v. Jubelirer advanced the idea that a test should include the intent and effect of the districting plan, but provided no analytical method for measuring these factors, leaving the area of partisan gerrymandering open to interpretation by lower courts.

The Supreme Court’s unwillingness to adopt a legal standard reflects an unwillingness to elevate party affiliation as the most important aspect of personal identity when drawing district lines. For if the court does adopt a unified legal standard that mandates states redraw district lines in a way that does not favor one political party, the court risks denying equal representation in respect to other identifiers, like religion, race, or nationality.

Yet, without a clear legal standard in place, lower courts will continue to dismiss these cases, leaving voters across the nation powerless to successfully combat the effects of extreme partisanship.

With a potential new justice on the bench, the Supreme Court has a renewed opportunity to create a definite legal standard. Whether or not they take this opportunity could influence the partisan make-up U.S. House of Representatives in 2018 and have far-reaching implications on redistricting plans nationwide.

Regardless, this case is an enormous step towards recognizing partisan gerrymandering as an infringement on our most basic and fundamental right: the right to vote.

Read the full opinion here:

Whitford v. Gill Remedy Order and Opinion (Dkt. 182) by Editor on Scribd

Image Source:Dmitry Kaminsky / 

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