The Supreme Court's Gerrymandering Case and Strategies for Winning Justice Kennedy's Vote


The leaders' main argument is that the state court should wait for a ruling by the U.S. Supreme Court on a similar redistricting case out of the state of Wisconsin. "First Amendment concerns arise where a state enacts a law that has the objective and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views".

Depending on the remedy that the court requires, the reverberations could be significant for redistricting after the 2020 census. That would have the potential to undermine Republican control of the House of Representatives as well as several state legislatures.

The name comes from Elbridge Gerry, a founding father, the fifth vice president of the United States, and the governor of MA, who signed a bill that created the first curiously misshapen district in the state designed to elect Democratic-Republicans over Federalists in 1812.

The nine justices will consider the lawfulness of partisan gerrymandering, the long-standing practice of manipulating the boundaries of electoral districts to benefit one party, and whether in this case Republicans meant to hobble Democrats. "And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like ― everywhere are going to be like the voters in Wisconsin and, no, it really doesn't matter whether I vote".

Legislation in the state House and Senate would throw out the current system that leaves much of the work to lawmakers in favor of a commission created to reduce the influence of party leaders. But the majority of the most obnoxiously gerrymandered states - including Wisconsin, where the case of Gill v. Whitford originated - are controlled by Republicans. Republicans gerrymandered legislative district lines so aggressively that in the next election, even though Wisconsin Democrats won 174,000 more votes than Republicans in races for state assembly seats, Republicans won a 60-39 majority in the chamber. The word, itself, comes from the name of an early 19th-century governor of Massachusetts, Elbridge Gerry, whose party drew a legislative map with a district that resembled a salamander.

Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be. "What is new is that with computers, with programs, you can be much more creative in drawing those lines". As Sam Wang and Brian Remlinger of the Princeton Gerrymandering Project note, "Thanks to technology and political polarization, the effects of partisan gerrymandering since 2012 have been more pronounced than at any point in the previous 50 years".

Republicans argue that the Wisconsin map reflects the fact that Democrats have packed themselves into cities, while Republicans are better distributed across the state.

Justice Samuel A. Alito agreed.

Arnold Schwarzenegger called on the Supreme Court to "terminate" gerrymandering. Roberts dismissed the statistical measures of gerrymandering devised by lower court judges as a "sociological gobbledygook".

"Moving forward on the litigation, moving forward on the legislative reform, it's a whole scale effort to make sure that votes are counted fairly in Pennsylvania", Almeida said.

The state is arguing the justices should put an end to courts' consideration of partisanship in districting plans and cautioning that far from being manageable, a ruling for the Democratic voters would open the door to a flood of lawsuits that would be based on cherry-picked evidence and hard for judges to manage.

Coupled with Kennedy's questioning about gerrymandering and the first amendment issue, Lithwhick and Grossman's analysis, this bodes very badly for partisan gerrymandering.