This June, the Supreme Court could bring Democrats and good government advocates the deliverance they’ve been waiting for for over a decade.
While racial gerrymandering is illegal, partisan gerrymandering, essentially, is not, and Republicans have weaponized it with great success. But in 2004, Justice Anthony Kennedy hinted that there might be a way in which courts could measure a partisan gerrymander and decide if it was so extreme as to be illegal. Two cases before the Court right now could be the vehicle to establish that standard.
The Court heard oral arguments in the first, Gill v. Whitford, last October. Then, unexpectedly, the Court agreed in December to take on the second partisan gerrymandering case, Benisek v. Lamone. It heard oral arguments in it earlier this week. The first deals with Wisconsin, a state that has been heavily gerrymandered to benefit Republicans; the second deals with a Maryland district that was gerrymandered to benefit Democrats.
Voting rights advocates are hoping that 2018 will be the year that the Court gives them a more robust legal tool with which to attack gerrymandering, which has skewed electoral outcomes and made it difficult for Democrats to win control of the U.S. House and many state legislatures — even during a wave election of the sort that is expected this November. Their hopes were somewhat dampened after oral arguments in Benisek this week revealed what seemed to be continuing confusion among the justices about whether a solution to gerrymandering exists.
Republicans are watching the cases closely as well, and some experts see in the Trump administration’s recent decision to add a question about citizenship to the Census a new strategy to rig the redistricting process.
I spoke with an authority on these issues, Jeff Wice, this morning. Wice is the co-chair of the National Conference of State Legislatures elections and redistricting committee, and is also a longtime lawyer to Democratic politicians. Our conversation below has been edited for length and clarity.
TPM: You were in oral arguments for Gill v. Whitford last October. Were you there earlier this week for the Benisek arguments?
Jeff Wice: No, I unfortunately had to participate in a press conference in New York regarding the citizenship question for the 2020 Census. So I tried, but couldn’t be in two cities at once.
TPM: Just to lay our cards on the table: What’s your background and where are you coming at these issues from?
Wice: I am approaching this from the perspective of having worked on four Censuses in the past. In one cycle, I served as counsel to president Bill Clinton’s members of the 2000 Census Monitoring Board and have been working each decade to make sure that we have as full and complete a count of the American population as possible. And I’m looking at the citizenship question as an unnecessary intrusion into that effort, especially because it was requested by the Justice Department to help better enforce the Voting Rights Act.
The American Community Survey, a periodic survey taken by the Census Bureau, is a sampling of the population and already includes citizenship data. Both the Justice Department and the federal courts for many years have relied on the American Community Survey citizenship data to enforce the Voting Rights Act. The addition of a citizenship question really has the impact of diluting minority voters, going against the grain of what the Voting Rights Act was intended for. Asking a question about citizenship is going to drive down participation in the Census, especially in communities where there are large numbers of people of color and immigrants. So I don’t really agree with the purpose or sincerity of the Justice Department’s question in the first place.
TPM: Do you suspect the administration’s thinking on the citizenship question is influenced by Gill v. Whitford and Benisek? Are they worrying about the outcome?
Wice: What many observers are looking at is that many Republicans have admitted that they have gone as far as they could in these states to politically gerrymander so they’re looking now outside the envelope to gerrymander the Census. If the Republicans take heavy losses in the polls this year and several state legislatures go back into the Democratic column, then the Republicans will be at a disadvantage in control of state legislatures. And given the spate of losses they’ve suffered in court cases across the country over partisan and racial gerrymandering, they’re trying to find the next best avenue to stay in power.
They have not done very well in the courts. They might not do well in the legislatures. So they’re going the next route to consider the very database from which districts are drawn via the Census.
TPM: With Gill v. Whitford and Benisek — could you describe the differences in the outcomes they seek and which case you think is stronger?
Wice: Well that’s the $64 million dollar question because you’ve got the Wisconsin case [Gill v. Whitford] challenging a partisan gerrymander against an entire state map. In Maryland you’ve got a First Amendment Freedom of Association case involving a challenge to one district where it’s argued that the Democrats singled out the district to block out a Republican from being able to win.
Yesterday’s oral argument in the Benisek Maryland case appeared to indicate that the Court is still undecided. Though you have five justices who appear to want to draw the standard against egregious partisan gerrymandering, you still have other justices wondering, “well, maybe we should let these cases go back to the lower courts, consolidate them, and hear them next year.”
So we’re not quite sure yet if the Court looked to Benisek as a way to bring the Wisconsin case together full circle and issue one ruling or whether they’re still tripping over the individual arguments that really get into the weeds about where you draw the line in the sand against partisan gerrymandering.
TPM: You say that there are five justices who seem to think that something should be done. Do you still see Kennedy as the fifth?
Wice: Kennedy has been the fifth in the same way that 20 years ago Sandra Day O’Connor was the fifth vote. You want to appeal to the one justice that is in the middle of the conservative and liberal justices.
TPM: In the oral arguments, have you seen any of the other conservative justices moving toward being convinced of the need for a solution to partisan gerrymandering?
Wice: I saw the Chief Justice in Gill v. Whitford wondering if every partisan redistricting case will end up before this Court with no limit. My thought went to whether the Supreme Court Justice would try and craft some kind of compromise with Justice Kennedy just to stem the flood of every state’s redistricting coming before the Supreme Court. That was something that he mentioned in oral arguments, but that’s also now six months ago.
TPM: And Roberts is somewhat concerned about optics — how this all appears to be playing out.
Wice: He doesn’t want the Supreme Court to just end up being an election law court for partisan fights.
TPM: I know there was a lot of speculation about why the Court decided to take on the second case, Benisek v. Lamone. What’s your read on that?
Wice: Well, I think the Court wants to try and set a standard and thought that taking several of the cases might give the ability to fashion one general rule against gerrymandering. We don’t know yet. It’s still a guess.
TPM: The way in which districts are drawn can get very mathematical, with a lot of computations involved. Is that an impediment before the Court — getting the justices to understand how it all works?
An interesting story: In one of the redistricting cases awhile back, Justice Alito recalled that his father was the New Jersey legislature staffer who redrew the redistricting maps many years back. He recalled that before computer software was available, his father would be bringing maps home on large sheets of paper and working with magic markers. So the justice understood early on that this is a complicated process.
Computer software has made it a lot easier and a lot quicker, but it has also made it a lot more complex. There are so many permutations as to how to draw a map. The bottom line is that no matter what you do with the computers and the data, if you can’t draw a map that meets constitutional fair criteria through a transparent, objective process, then you’re making a mistake.
I usually recommend that you have ranked criteria. That you look to one person one vote, the Voting Rights Act, defining compactness, defining continuity, defining what a community of interest is. If you’ve got all those rules, then the computer can help you determine how to apply the rules. But if you simply draw maps based on partisan advantage, you don’t belong there. You shouldn’t be drawing maps.
TPM: What would be the ideal outcome of these two cases? What would you hope the Court does in June?
Wice: The Court will set a certain standard that will in general terms lay out what legislators or what commissions can or can’t do in terms of overreaching. They may set some kind of a standard requiring basic symmetry. I can’t define what that standard would be yet, but it would be to avoid the overreaching, the egregious power grab in which one party locks out all other parties from being elected to office.
TPM: And if the Court does not rule that way, what other avenues are open to people who want to address gerrymandering before 2020?
Wice: There may still be time in some states to amend state constitutions either to create independent commissions or even advisory commissions or criteria and procedures that legislators have to follow. Short of that, then consider passing regular state laws that would set criteria and processes for redistricting and continue to hammer away at public awareness, the importance of this, what it means to your hospitals, to your streets, to your schools, to your local community, the importance of representation.
We’re also seeing newer and newer theories — mathematicians and social scientists coming out with different measures of redistricting inequality. I’ve never seen as much public focus on redistricting as I do right now. You’ve got a much, much higher public awareness of the process and you’re likely not to see as many plans created behind closed doors again — or they’ll end up in court and probably lose. I think that many legislators overreached, they were greedy, they thought they could hide behind lawyers and lawyer confidentiality that the courts have busted down or broken through.
So we’re entering a new world that the courts have created. In a number of cases the courts are doing what the legislators can’t. So even if the courts don’t set a legislative standard on gerrymandering, they’re opening up the process more, and that’s a good sign.
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