//  10/7/17  //  Commentary

Cross-posted from Modern Democracy

On Tuesday, Justice Sotomayor asked a “simple but devastatingly effective” question of Erin Murphy, one of the attorneys arguing in favor of Wisconsin’s gerrymandered map: “Could you tell me what the value is to democracy from political gerrymandering?”  At first glance, Justice Sotomayor’s question seems important because it transcends “the technicalities of constitutional doctrine” and raises “first principles,” making the presumed answer easy: “Political gerrymandering has no value in a democracy.”

Murphy’s answer—claiming that gerrymandering “produces values in terms of accountability”—seemed incomprehensible to observers.  “I really don’t understand . . . what that means,” was the Justice’s own apt response.  The type of gerrymander enacted in Wisconsin is specifically designed to defeat accountability, not foster it.  What was Ms. Murphy—a stellar advocate—talking about?

The answer is more revealing than it might seem because Justice Sotomayor’s question is more complex than it might seem.  Asking about the “value” of gerrymandering doesn’t just implicate democratic “first principles”—it strikes at the heart of the constitutional doctrine as well.

As Justice Breyer observed in his Vieth dissent (invoked by Ms. Murphy), political considerations can “play an important, and proper, role in the drawing of district boundaries.”  In Vieth, Breyer points to an example of a neutral court-appointed boundary drawer accidentally moving an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp’s former district.  This may be a “micro” political consideration, but any person (or organization) that has spent years working with his or her representative on a specific neighborhood project will recognize the democratic value in keeping certain areas tied to certain seats, whether to support and maintain the politician who is doing good work or to mobilize and defeat the politician who has stymied that work.  This accountability and responsiveness to voters’ interests is a feature of democracy, not a bug.

At a “macro” level, the Court has also previously allowed mapmakers to allocate seats proportionally based on statewide party voting strength, and presumably would allow a legislature to draw “competitive” seats, if it so chose.  Because both of these interests require mapmakers to draw districts based on voters’ political preferences and beliefs, however, both of these forms of redistricting are also—in the Court’s own confusing doctrinal parlance—“political gerrymandering.”

In other words, “political gerrymandering” (as the Court has curiously defined it) can serve important democratic values such as accountability, competitiveness, proportionality, etc.  Murphy’s unconvincing attempt to tie the Wisconsin map to these examples and precedents, however, reveals a key doctrinal distinction: political gerrymandering for partisan advantage does not have any such constitutional legitimacy.  That is why divvying up congressional seats in purple North Carolina between 6 Ds / 6 Rs in 2001 can be constitutional, even if divvying up the same state between 3 Ds / 10 Rs in 2016 is not.

Justice Kennedy makes a similar point in LULAC when discussing the difference between legitimate incumbency considerations and illegitimate incumbency considerations (leaving open the question of whether such a distinction might support a claim outside the racial gerrymandering context):

“The Court has noted that incumbency protection can be a legitimate factor in districting, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.  If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters.  If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters.  By purposely redrawing lines around those who opposed [the incumbent], the state legislature took the latter course.  This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters.”

Justice Sotomayor’s question isn’t a “gotcha” intended to corner an advocate—it’s a graceful synthesis of the Supreme Court’s confusing case law.  If a map advances democratic values, or legislators redistrict with the purpose of advancing democratic values, then there is little justification for courts to get involved, as the Justices recognized in Gaffney v. Cummings: “[The] judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.”  When legislators act counter to democratic values and attempt to insulate themselves from their own voters, however, they cannot hide behind the mere fact that “politics” play a (well-warranted) role in the redistricting process—a distinction the Justices also recognized in Gaffney: “[A plan] may be vulnerable [to challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”

Sotomayor’s question lays bare the simplicity of this constitutional issue in a way “the intelligent man of the street” is sure to appreciate.  Far from diminishing the Court’s credibility, judicial intervention along these lines would enhance the reputation of the Court, just as the one-person one-vote doctrine did decades ago.  And just as this generation may now wonder how an obvious doctrine like one-person one-vote took so long to arrive, “[s]o too will it be when this generation explains to their children that the government used to be able to discriminate between citizens based on how the government predicted they would vote, allowing the state to favor preordained candidates and to suppress the influence of those who disagreed with the state-sanctioned choices.”

What is the value to democracy from political gerrymandering for partisan advantage?

The intuitive answer is the right one: None.


The Supreme Court, Animus, And Amicus

10/10/17  //  In-Depth Analysis

Some thoughts on a brief in a case the Court had scheduled to hear today.

Leah Litman

U.C. Irvine School of Law

Forum on Defending the First Amendment from Trump

10/6/17  //  Latest Developments

Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the 'bully podium.'

Take Care

Free Speech Solidarity

10/6/17  //  In-Depth Analysis

Collective action has proven an effective response to the President’s attempted interference with the employment of Jemele Hill and NFL players.

Charlotte Garden

Seattle University School of Law