A Line the High Court Shouldn’t Cross
Lawyers are notoriously bad at math, so when a case involves mathematical formulas, it tends to baffle and confuse advocates and judges alike. Such a case goes before the U.S. Supreme Court Tuesday—Gill v. Whitford, a political redistricting case from Wisconsin.
The plaintiffs will present a series of equations giving the illusion of precision and, they hope, masking their underlying political motivation. If the justices accept the plaintiffs’ argument, or any of its variations, it would put the courts deep into what Justice Felix Frankfurter called the “political thicket” of drawing political maps. More important, it would undermine a bedrock principle of American politics—that we elect representatives based on electoral districts, not proportionally as in many European countries.
The idea that judges have any say in the mapping of political districts is relatively novel. Until Baker v. Carr in 1962, the Supreme Court had routinely held that redistricting was a “political question,” beyond judicial review. Baker presented the court with an egregious case of abuse. The Tennessee Constitution required the General Assembly to redraw district lines every decade, after the census. State lawmakers had ignored that mandate since the turn of the century. Between 1900 and 1950, large numbers of people moved from the country to the cities, producing gross malapportionment. Urban districts were severely overpopulated and the rural ones significantly underpopulated. By simple inaction, rural lawmakers in the General Assembly were able to preserve their own domination. Baker held that the courts could order a redistricting to correct this imbalance.
Fast forward 55 years, and we have plaintiffs who argue that because redistricting hasn’t yielded the results they want, they are entitled to judicial intervention. Their theory comes down to this: A political party’s representation in a state legislature should be close to its statewide vote total in legislative elections.
The consequences of this proposition would be immense. First, it would require the court to settle on the correct formula. The plaintiffs in Gill v. Whitford argued for the “efficiency gap” before shifting to something called “political asymmetry.” It raises the possibility of endless litigation over the correct standard, with judges struggling to make sense of testimony from dueling mathematicians. In the end, it would require courts to determine the “appropriate” political balance in the state. Is that a job for unelected judges?
Second, such a standard would likely require bizarrely configured gerrymanders in order to achieve the judicially determined political balance. Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” Mr. Bishop noted the increasing trend of counties to be carried by one party or the other by larger and larger margins. From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%—even though 1976 and 2004 were close elections with similar popular-vote margins (2.1% and 2.4%, respectively).
Others have carried this analysis forward, giving the phenomenon the academic moniker “spatial polarization.” David Wasserman of the Cook Political Report observed last March: “More than 61 percent of voters cast ballots in counties that gave either Clinton or Trump at least 60 percent of the major-party vote last November. That’s up from 50 percent of voters who lived in such counties in 2012 and 39 percent in 1992.”
What this means for redistricting is Democrats tend to live in one part of a state, or a county, and Republicans in another. In Florida in 2000, Al Gore won 80% or more of the vote in some 800 precincts, while George W. Bush won 80% or more in about 80 precincts. When compact districts are drawn in the Democrat-leaning areas of Florida, they result in districts that vote 70% or 80% for the Democrat. If you draw natural, compact, contiguous districts, you will tend to have concentrated districts of one persuasion or the other. The only way to avoid that is to draw elongated districts that splinter communities and are gerrymandered to achieve a judicially determined political result.
This leads to the most pernicious effect of the argument. It changes the basis of representation from district-based to proportional. Instead of representing a community that is mostly compact and cohesive, the lawmaker would be selected according to a statewide partisan balance determined by the court. Such an approach can only heighten the already intense partisanship of contemporary politics.
In Gill v. Whitford, the Supreme Court has an opportunity to put an end to this nonsense by finding that the lower court ignored precedent and misapplied the law. It should do so in order to preserve our democracy.
Mr. Ryder is co-chairman of the Republican National Lawyers Association and a former general counsel of the Republican National Committee. He practices law in Memphis, Tenn., and is an adjunct professor at Vanderbilt University.
Appeared in the October 3, 2017, print edition.