nsucurrent.com April 19, 2018

Justices take on fight over partisan electoral maps

20 June 2017, 12:56 | Dan Bryan

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For instance, Democrats in charge of the Maryland legislature have divvied up Democratic base voters in the DC suburbs and Baltimore into large a number of districts, while concentrating Republicans in more rural parts of the state in a smaller number of districts. "After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views". Democratic voters are clustered in cities such as Milwaukee and Madison, while Republican voters are more evenly spread across the state. Critics sued, calling the new political boundaries unfair to Democrat voters.

Gerrymandering is the practice of one party packing as many voters of the other party into the fewest districts possible.

Employing the latest mapping technology, they created "a district plan that is one of the most extremely gerrymandered state legislative plans in the last four decades", a statement from the Campaign Legal Center says. "The U.S. Supreme Court was unanimous in its decision and there is no reason to delay the drawing of new maps".

Federal courts have previously ruled that maps that employ "racial gerrymandering" are unconstitutional.

The Wisconsin case sits apart from other racial gerrymandering cases, including several from North Carolina and Texas, by testing the limits of purely partisan redistricting. That would preserve the status quo and leave the battle over the perceived ills of partisan gerrymandering to politicians and voters.

The challengers in the Wisconsin case argued that the state's electoral map was carefully drawn so that the GOP was virtually guaranteed to control the Legislature for the entire decade.

Among the possibilities is that the question of whether a partisan gerrymander lawsuit can even be filed is a question of whether the issue is "justiciable" - that is, capable of being decided by a court. During the 2012 election, GOP candidates in Wisconsin only won 48.6 percent of the statewide vote but captured 60 of the 99 seats in the Wisconsin State Assembly. In 2014, the party garnered 52 percent of the vote and 63 Assembly seats. "Now this story will be told on a national stage". "Wisconsin lawmakers have maintained that our state's redistricting process and legislative maps are legal and constitutional, and we look forward to the Court's final decision which we are confident will affirm our position".

By its order, the Supreme Court has apparently chose to take the case in its next term, calling it officially a postponement of a decision on jurisdiction. They call their metric the "efficiency gap", calculated by taking the difference between the number of "wasted votes" for each party, and dividing that difference by the total number of votes. Republicans in OH and Pennsylvania have done the reverse, concentrating urban voters in a few heavily Democratic districts. But a majority of the court has never been able to agree on a standard that marks an appropriate constitutional boundary. The lower court did devise a constitutional formula for judging when a partisan gerrymander did go too far.

The Wisconsin court was not so definitive.

Smith and Potter's group noted that legislative aides created Wisconsin's partisan gerrymander six years ago with hired consultants in a secret room in a private law office. I also argued that it was likely that the lower court's decision would be eventually overturned.

In last year's report, "The Most Exciting Attack On Partisan Gerrymandering In Over A Decade", ThinkProgress Justice Editor Ian Millhiser wrote, "a dozen years after [Justice] Kennedy despaired for want of a workable way to uncover partisan gerrymanders, two young scholars may have cracked the code".

In a 2004 case, Justice Kennedy joined with a conservative plurality in rejecting a claim of unconstitutional partisan gerrymandering.

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