The Legality of Partisan Redistricting and Gerrymandering
It’s not often that movie stars grace the front steps of the United States Supreme Court. In early October, however, actor and former California Governor Arnold Schwarzenegger led a protest outside the Court as Justices heard oral arguments in the case Gill v. Whitford. Why was ‘The Governator’ in Washington, D.C. and what was he protesting?
After every national census, conducted once per decade, state legislatures redraw electoral and political district boundaries to ensure that each district has roughly the same number of people and thus, that each vote has “an equal say.”
Since it is tasked with redrawing districts in any case, the temptation is omnipresent for the political party in power to redraw districts to its own electoral advantage. For example, redistricting can concentrate heavy support for an opposing political party in one district while spreading out one’s own support into several neighboring “swing” districts. In this way, parties can use cartography to gain an electoral advantage in an otherwise equal constituency.
This practice of redistricting district boundaries for political party gain, class gain, or to increase the likelihood of a political result, is known as Gerrymandering and dates back to the United States’ colonial era. “Gerrymander” is a portmanteau of the word “salamander” and the last name of the Massachusetts’ governor at the time, Elbridge Gerry, who signed into law a redistricting plan designed to benefit his political party in 1812. The newly-created district supposedly resembled the shape of a salamander and the humorous term has endured.
Political Gerrymandering has been practiced by both parties at various levels ever since. Still, advanced computerized models and data analysis techniques have made the practice more effective and more prevalent than ever. Since Republicans have done very well in state and local elections over the past decade, it has been primarily Republicans who have been in position to practice this maneuver.
After the 2010 census, Wisconsin Republicans, who has gained majorities in both houses of the state legislature and the governor’s office, redrew district maps to concentrate strong Democratic support into some districts while spreading Republican support across others, giving Republicans an electoral advantage.
A group of Wisconsin Democratic voters led by University of Wisconsin professor William Whitford, have challenged the Wisconsin redistricting plan, warning that permitting the redistricting plan would allow Republicans to maintain control of the state’s legislature for the foreseeable future. The state of Wisconsin argues that if the Supreme Court decides a partisan gerrymandering case, it will open the door to “unprecedented intervention in the American political process.”
For nearly 200 years, federal courts did not interfere with gerrymandering practices. Justice Felix Frankfurter wrote that “Courts ought not to enter this political thicket,” ruling that state legislative district composition was a non-justiciable political question, meaning that it should be left to the legislatures to decide. However, in the landmark 1962 decision, Baker v. Carr, the Supreme Court reversed this trend and ruled that gerrymandering was unconstitutional when it was done to target or disenfranchise minority voters. In so doing, the Court announced the “one person, one vote” standard of American representative democracy.
Three years later, Congress enacted the Voting Rights Act of 1965, requiring that legislatures at both the state and federal level reflect the racial and ethnic diversity of the people they represent. First, the Act sought to protect racial minorities from the dilution of their voting rights and second, it guaranteed the representation of minority interests in governmental decision-making. The Act prohibits states from gerrymandering that could result in the denial or abridgement of the right to vote based on race, color, or membership in a language minority.
The 1995 Supreme Court decision, Shaw v. Reno, reaffirmed the prohibition on redistricting based on race. There, voters mounted a racial gerrymandering challenge to North Carolina’s 12th Congressional District boundaries, which created a district with an African-American majority that was so bizarrely drawn, it could only be explained as an effort to unconstitutionally classify voters by race. Justice Sandra Day O'Connor, writing for the majority, found that North Carolina's legislature redistricting legislation was so irregular on its face that it could only be perceived as an effort to racially segregate voters.
While the law is clear that racial gerrymandering is unconstitutional, the courts have never applied this prohibition to gerrymandering that is merely based on political partisanship; that is, done not to exclude members of a particular background, but merely to give the party in power a partisan advantage.
In the 2004 case, Vieth v. Jubelirer, registered Pennsylvania Democratic voters sued state Republican elected officials in a political gerrymandering case. They based their challenge on the “Equal Protection clause,” arguing that voters of one party were favored in their chance to elect representatives of their choice. The Court, however, declined to rule that partisan gerrymandering is unconstitutional, finding it too difficult to develop “clear, manageable, and politically neutral standards for measuring the burden a given partisan classification imposes on representational rights,” meaning that a court can’t easily determine when politics are influencing redistricting.
In his separate concurring opinion, Justice Anthony Kennedy indicated that the Supreme Court may have a role to play if a future challenger to gerrymandering bases its claim on the First Amendment. He wrote, “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. 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.”
In our Gill case in Wisconsin, opponents of Wisconsin’s redistricting plan have taken Justice Kennedy’s recommendation and have challenged the redistricting on First Amendment grounds. Their argument is that a redistricting plan may violate the First Amendment if it has the purpose of burdening the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association. In other words, the gerrymandering seeks to dilute the influence of some of the voters because they have, at some point, expressed political viewpoints that are hostile to those currently in power. The Supreme Court will analyze whether the partisan redistricting plan is an unconstitutional viewpoint-based restriction.
As California’s governor, Schwarzenegger championed redistricting reform and backed initiatives to take the power of redrawing districts out of the hands of state legislators, possibly explaining why he appeared at the Supreme Court. In a few months, the Supreme Court will decide whether partisan gerrymandering violates the First Amendment. A ruling for the opponents of Wisconsin’s redistricting plan could remake American politics by requiring lawmakers to draw more competitive districts that are irrespective of the viewpoints of the constituencies.
 Ted Johnson, “Arnold Schwarzenegger Speaks at Supreme Court Rally to ‘Terminate’ Gerrymandering,” Variety, (October 2017).
 Emily Barasch, “The Twisted History of Gerrymandering in American Politics,” The Atlantic, (September 2012).
 Jay Cost, “The Junk Science at the Heart of the Gerrymandering Case,” The Weekly Standard, (October 2017).
 Amy Howe, “The justices tackle partisan gerrymandering again: In Plain English,” SCOTUSBlog, (August 2017).
 Colegrove v. Green, 328 U.S. 549, (1946).
 Dwight Aarons, “Nationwide Preclearance of Section Five of the 1965 Voting Rights Act: Implementing the Fifteenth Amendment,” 11 Nat'l Black L.J. 93, (1989).
 L. Paige Whitaker, “Congressional Redistricting and the Voting Rights Act: A Legal Overview,” Congressional Research Service, (2015).
 Shaw v. Reno, 509 U.S. 630, (1993).
 Scott Allen Carlson, “The Gerrymandering of the Reconstruction Amendments and Strict Scrutiny: The Supreme Court’s Unwarranted Intrusion into the Political Thicket,” 23 T. Marshall L. Rev. 71, (1997).
 Vieth v. Jubelirer, 541 U.S. 267, (2004).
 Supra Note 3.
 Supra Note 13.
 Mark Joseph Stern, “Does Partisan Gerrymandering Violate the First Amendment?,” Slate.com, (June 2017).
 Supra Note 1.