Gerrymandering — constructing election districts to favor a particular group — has long been a scourge of the US political system. While the US Supreme Court has ruled that gerrymandering that favors a particular race must meet a strict standard in order to not be considered unconstitutional, it has never made such a ruling about gerrymandering that favors a political party.
A flurry of legal cases may change that. In October 2017, the US Supreme Court heard the Democrats’ challenge to Wisconsin’s gerrymandered map. And in December 2017, the court agreed to hear a Republican challenge to Maryland’s map. On Jan. 9, a federal court ruled that the Republican gerrymandering of North Carolina’s congressional districts was unconstitutional — a case that may go before the Supreme Court. And at the state level, on Jan. 22, the Supreme Court of Pennsylvania ruled that the state’s Republican gerrymandered map “clearly, plainly and palpably” violates the state constitution. Legal experts note that the US Supreme Court does not review cases based entirely on state law. It is expected that Pennsylvania will have to redraw its districts for the 2018 elections.
Wisconsin’s map is a prime example of partisan gerrymandering and its effects on elections. After the 2010 census, Republican lawmakers enlisted experts using sophisticated software to draw the state’s election districts to assure continued Republican control of the state legislature. It worked. In the 2012 election, Republicans received just 48.6 percent of the votes, but they won 60 out of 99 seats in the legislature. Democrats in the state sued and in November 2016, a federal court ruled that the district map was unconstitutional. The State of Wisconsin then appealed to the US Supreme Court, which heard the case (Gill v. Whitford) on Oct. 3, 2017.
The rulings on both the Wisconsin and Maryland gerrymandering cases are expected to be handed down in May or June. They give the Supreme Court an opportunity to do what it has never done before: strike down election districts gerrymandered because of politics, rather than racial demographics.
Paul Smith argued the Wisconsin case before the Supreme Court. Smith, vice president for litigation and strategy at the nonprofit Campaign Legal Center, has argued 21 cases before the high court, including Vieth v. Jubelirer, a 2004 Pennsylvania gerrymandering case in which the court ruled 5-4 that Pennsylvania’s districts were not unconstitutional. In that case, the majority held that the court could take no action given the lack of a clear standard for determining gerrymandering.
YES! Contributing Editor Fran Korten spoke with Smith about the Wisconsin gerrymandering case.
Fran Korten: What is the significance of the recent Wisconsin gerrymandering case?
Paul Smith: Gerrymandering is one of the really significant flaws in our democracy. It interferes with the ability of the people to decide who is going to represent them. It is designed to determine in advance that one party will control the legislature even if the people decide that they would rather have the other party be in control.
People have been trying to get the Supreme Court to do something about it for a long time because it is clearly unconstitutional. The question is, can we construct some standards that the court can use? I think this case is kind of the last chance. If the court doesn’t find a way to make it actionable this year, then we may have to wait an awful long time for any further efforts to get judicial relief.
Over the years you’ve argued 21 cases before the Supreme Court, including just last week the Ohio voter purge case ( Husted v. A Philip Randolph Institute). You’ve won some and you’ve lost some. At the end of your day in court, do you have a sense as to what the outcome will be?
The hardest to predict are the cases where it’s very clear that most of the justices are lined up ideologically. So that makes Justice Kennedy likely to be the one deciding the case and he’s often very quiet in that situation. That was true in the Wisconsin case. He said nothing to me in my whole half-hour up there. So I think that it may be 4-4 with Kennedy deciding.
So how do you interpret Kennedy’s silence in this case?
I was encouraged by the fact that Kennedy didn’t ask me any hard questions. And he asked some hard questions of the other side. While I have long ago learned that you shouldn’t make predictions, I think we have a good shot.
If you win the Wisconsin case, how will that change the districting process?
If we win in the way that we hope, it will impose meaningful limitations on gerrymandering. The people drawing the maps after the 2020 census will know that if they draw the map too aggressively to favor one party, there is a real risk that it will be held unconstitutional by a federal court. So they have to worry about what kind of remedy the court will impose. While I think that the Supreme Court’s legal standard is unlikely to say you can’t consider partisanship at all, it will make the maps more responsive to the electorate.
The current Wisconsin district map makes it almost impossible for the Democrats to get control of the state legislature even in years when they get most of the votes. If we win this case, that kind of thing would be prevented. It doesn’t make for a perfect system. Probably the best system would be people drawing the lines who are nonpartisan.
Are there examples of nonpartisan map drawing?
There are lots. We end up with fair and balanced maps when you have a nonpartisan commission like the one in California. Or when the parties in control of the legislature are divided, so they have to compromise. Sometimes courts end up having to draw the map and they tend to try to avoid favoring one party or the other. So in those situations you see maps that focus on traditional districting criteria like compactness and respecting political subdivisions, such as counties or parishes.
In 2004 you argued a Pennsylvania gerrymandering case before the Supreme Court. You lost that one 5-4. What is different about the Wisconsin case that made it worth bringing the gerrymander issue back to the court?
In that 2004 case, Vieth, the fifth vote that made us to lose was Justice Kennedy’s. He did not agree with the four conservative justices that all such gerrymandering claims should be thrown out. He said he hoped there would be meaningful limitations on partisan gerrymandering. His problem was that he didn’t think we had given the court adequate standards to identify which cases are egregious gerrymanders and which are just politics as usual. He said if standards could be established that identify the most egregious ones with some reliability, he would support making the courts do something.
So Justice Kennedy laid down a challenge to the social scientists. They’ve come up with new ways to measure gerrymandering. In the Wisconsin case, we focused on the efficiency gap. We hope that gives Justice Kennedy some confidence that he’ll be able to do what he asked in Vieth, which is to identify durable severe gerrymanders and limit judicial action to those.
Can you explain the efficiency gap?
Sure. The efficiency gap is a way of measuring “packing” and “cracking,” which is how you gerrymander. Packing is where you pack the disfavored party’s voters into 80 or 90 percent districts. That wastes a lot of their votes because only 50 percent are needed to elect a representative. The other way you gerrymander is “cracking,” where you scatter some of the disfavored party’s voters into districts in which they constitute maybe 40 or 45 percent of the voters, so they’ll continuously lose. That again wastes a lot of votes.
The efficiency gap says, “Let’s add up all the wasted votes for each party. If we have a gerrymander, the wasted votes should be much higher for the disfavored party.” The efficiency gap tells you how extreme the gerrymander is. It allows you to compare the degree of the gerrymander to others around the country and back in time.
I heard that the chief justice called this kind of math “gobbledygook.”
Yes, “sociological gobbledygook.” But it’s actually not very complicated. It is mostly arithmetic.
If you lose this case, what would be next steps in the fight against gerrymandering?
One would be to pursue claims under state constitutions in state courts, as we just saw in the ruling of the Pennsylvania supreme court. The US Supreme Court does not review decisions by state courts based solely on state law. So that ruling means there will be a new congressional map in Pennsylvania for 2018.
The other thing to do is to turn the redistricting job over to neutral and independent commissions. There’s a growing movement to do this, spearheaded by groups like Common Cause and the League of Women Voters. I think a loss of this Wisconsin case, while it would be discouraging, might galvanize those kinds of political organizing efforts.
What can ordinary citizens do to fight gerrymandering?
People can get involved in this growing movement. In most states you’ll find people organizing around this issue. For example, in Virginia, there’s One Virginia 2021. A couple of months ago, I spoke to a Common Cause meeting of supporters of an independent commission in Indiana. It’s going to be on the ballot in Michigan. It may be on the ballot in Ohio.
I listened to the audio of your presentation before the Supreme Court on the Wisconsin case. I was impressed with the number of factors that must make arguing before the court excruciatingly stressful. The case you are arguing can have monumental consequences in our society and you have only 30 minutes to present your case. Plus the justices can interrupt you at any time and go in a completely new direction.
That’s all true. And they have gotten very aggressive. They use their hard questions to expose the flaws in one side or the other. They do surprisingly little face-to-face arguing about these cases with their fellow justices. So the aggressiveness is a reflection of how hard they are trying to make their case.
How do you prepare for such a high-stress event?
There are basically two phases of preparation. First, you’ve written long briefs, which are probably more important than the oral argument. Then you have moot courts. You practice the argument with lawyers acting as justices throwing at you every hard question they can think of so that you will not hear it for the first time from a real justice. You need probably three or four of those, honing the argument, analyzing how to do better the next time. Then I spend the last couple of days just talking to myself about how the argument is going to look, how to phrase it, memorizing my introduction. I visualize the whole thing and try to get it all on the tip of my tongue.
How do you feel just before you step before the court?
The first time I did it, back in the ’80s, I was so nervous that I had psychosomatic laryngitis. You’re never not nervous. But it is a different feeling when you’ve done it as many times as I have.
As I listened to the audio of your presentation, I could hear the depth of your passion for this issue.
Yes, I was trying very hard to make it clear to the justices that they have a very tough choice. If you give politicians a complete pass by saying no matter how biased the districting is, we, as judges, are not going to do anything about it, then gerrymandering is going to get really severe. The threat to democracy is going to be much worse than it is already. But hopefully we will win, and extreme partisan gerrymandering will be a thing of the past.