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High Court Punts A Major Test Of Extreme Partisan Gerrymandering

Jun 19, 2018
Originally published on June 19, 2018 9:03 am
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In a word, the Supreme Court punted on a major test of extreme partisan gerrymandering. The court sidestepped the major issues in a case billed as the most important of the term. At issue was whether the Republican-controlled state Legislature in Wisconsin acted unconstitutionally when it drew district lines in 2011. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Instead of deciding the constitutional question, the justices unanimously said the plaintiffs in the Wisconsin case had not proved that they suffered the kind of injury that gave them the legal standing to sue in court. Writing for the court, Chief Justice John Roberts said that a citizen's right to vote is embodied in his right to vote for his representative, not in an abstract interest in the overall makeup of the legislature. But in an unusual step, the court, by a 7-2 vote, then sent the case back to the lower courts to give Democratic voters a chance to present evidence of harm on a district-by-district basis instead of a statewide basis. And in a separate concurring opinion, Justice Elena Kagan, writing for the court's four liberals, laid out a road map for how the voters could prove that. But Justice Anthony Kennedy, seen as the decisive fifth vote in the case, did not sign the concurring opinion, so it's not clear whether he agrees or disagrees with some or all of it. Bottom line - the Supreme Court decided very little. Richard Hasen is an elections expert at the University of California, Irvine.

RICHARD HASEN: If Justice Kennedy wants to decide this case and he's still on the court next term, I think he certainly could. Whether he will, I'm not all that certain.

TOTENBERG: Stanford law professor Nathaniel Persily, an elections expert who often helps courts draw new legislative maps, notes that in an era of high-speed computer technology, coupled with ever-more reliable data that predicts how citizens will vote, partisan gerrymanders are more durable and, in his view, more dangerous to democracy.

NATHANIEL PERSILY: The data that we have allows you to account for political waves so that you can make sure that your gerrymander is insulated against political shifts.

TOTENBERG: But not everyone was discouraged. University of Chicago elections expert Nicholas Stephanopoulos, who devised the mathematical formula for testing gerrymanders that the Supreme Court rejected yesterday, said he believes the Wisconsin plaintiffs will be able to successfully navigate the hoops set up by the decision.

NICHOLAS STEPHANOPOULS: It's a silly hoop, but it's a silly hoop that we are really capable of jumping through.

TOTENBERG: Most election experts, however, said that a different case testing a North Carolina partisan gerrymander is more likely to get to the Supreme Court next term. In that case, currently sitting on the Supreme Court docket awaiting action, voters challenged 10 districts as extreme partisan gerrymanders drawn by the GOP. And there was little doubt about the Republicans' intent. David Lewis, the Republican chairman of the House redistricting committee, said clearly that his objective was to, quote, "gain partisan advantage." Until and unless the Supreme Court finally takes decisive action to curb partisan gerrymandering, as University of Oklahoma's Keith Gaddie puts it...

KEITH GADDIE: It's still the Wild West out there, Nina. We just know that is not democratic and therefore despicable, but we don't if it's illegal.

TOTENBERG: Monday's ruling is an enigma in many ways. The case was among those argued in October at the beginning of the term, yet it decides little, has a concurrence that says a lot but is not binding and a dissent that is a single paragraph. All of that hints that a lot was going on behind the scenes and that the decision that the court produced is something of a placeholder. The question is - a placeholder for what? Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.