This article appeared on ThinkProgress on December 20, 2014.
The First Amendment forbids viewpoint discrimination, so when a state draws legislative district lines that minimize the power of people who belong to one political party while maximizing the power of people who hold another viewpoint, that violates the Constitution. A majority of the justices on the Supreme Court, however, have refused to police partisan gerrymandering, largely because they believe that doing so would be too difficult. As Justice Scalia wrote in his plurality opinion in Vieth v. Jubelirer, “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.”
Scalia’s view, however, is questionable. Mathematical models do exist that can measure when a state’s electoral map produces results that are wildly out of line with voter preferences. And, in some recent gerrymandering cases, states have even openly stated that they tried to enhance some voters’ power at the expense of others. Texas Attorney General and Governor-elect Greg Abbott (R) admitted in a 2013 court filing that “[i]n 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.” At the very least, a court should be able to discern that a partisan gerrymander occurred when the state freely admits as much.
A potentially significant writing contest sponsored by the Washington, DC advocacy group Common Cause seeks to further repudiate the claim that there is no meaningful way for judges to determine when a legislative map was drawn to give one party an advantage over the others. The contest offers a $5,000 top prize to lawyers and scholars who submit papers “creating a new definition for partisan gerrymandering or further developing an existing definition.” So the contest seeks to show that, if enticed by a cash prize, a community of scholars can discover something that the justices themselves cannot find — or at least that they claim not to have found — a way to prevent lawmakers from choosing their own voters.
Under existing precedents, where judges largely must allow partisan gerrymandering to continue unmolested, lawmakers have grown extraordinarily sophisticated in drawing maps that ensure that a state’s legislature or congressional delegation will bear little resemblance to the preferences of its voters. Indeed, GOP-friendly maps played a significant role in keeping the House in Republican hands during the soon-to-expire Congressional term, despite the fact that the electorate actually preferred Democrats to Republicans in 2012.
Though it is unclear that the Court’s present majority could be convinced to strike down these sorts of gerrymanders under any circumstances, if nothing else, the anti-gerrymandering writing contest could provide a future Court with a legal standard it could use to prevent these kinds of maps from being drawn in the future.
Office: Common Cause National
Issues: Voting and Elections