By Owen Voutsinas-Klose
Owen Voutsinas-Klose is a freshman at the University of Pennsylvania.
Gerrymandering, the time-honored American tradition that gets its name from Massachusetts’s early 19th century-era Governor Elbridge Gerry, is seeing a new threat from a judiciary increasingly keen on invalidating overtly partisan maps.
The process of redistricting varies greatly by state, with some states including California, Arizona and Iowa using independent citizens commissions or offices to draw lines following each census with the goal of eliminating partisan bias. However, in the vast majority of states, the legislature is responsible for creating maps. The issue of gerrymandering took up special prominence in recent years after the GOP wave in 2010 allowed the party power in a record number of state legislatures coincidentally in the year of a census, allowing them control of maps. A particularly egregious example of this gerrymandering is in Wisconsin, where the 2010 elections gave the GOP total control over government. Using computer software and taking advantage of the tendency of Democrats to congregate in smaller areas, Republicans enacted a map that resulted in them taking 60 of 99 seats in the Wisconsin Assembly, despite losing the popular vote to Democrats in the 2012 election cycle .
Courts have traditionally refrained from interfering in gerrymandering cases, especially because there is no readily available test by which to judge a partisan gerrymander and whether it violates the right to equal representation. In the words of Chief Justice John Roberts, when a court overturns a legislatures’ redistricting map, “you’re taking [these] issues away from democracy.” The 1965 Voting Rights Act prohibits gerrymandering with the intent to racially discriminate, but no statute explicitly prohibits gerrymandering for the purpose of favoring one party over another. However, the two often overlap. In 2017, the Supreme Court ruled that the drawing of two of North Carolina’s congressional districts was racially motivated, by Republicans who sought to pack as many black (and likely Democratic) voters into the districts as possible in order to make other districts more conservative .
This intervention by the Supreme Court has opened the gates to more willing judicial intervention in gerrymandering cases. This current term, the Supreme Court stands ready to rule on the constitutionality of partisan gerrymanders in the Wisconsin case, and is hearing a case challenging a gerrymander in the Democratic state of Maryland that has resulted in only one Republican elected to the U.S. House out of eight districts, despite Clinton in 2016 winning by a comparably much smaller margin. In North Carolina, a three judge panel in January tossed out the state’s congressional map and ordered the legislature to craft a new plan within three weeks, finding that the gerrymander violates voters’ Fourteenth Amendment right to equal protection . Days after, the Pennsylvania Supreme Court invalidated the state’s heavily gerrymandered maps by ruling that they violated the state constitution .
Why are judges seemingly more willing to get involved in redistricting cases? One factor is clearly the Supreme Court, which by accepting the Wisconsin case signalled to lower courts a desire to wade into the issue. Secondly, increased consensus in the sociological community has made it easier to find a standard with which to judge the impacts of gerrymandering. Sociologists have begun to use a standard known as the efficiency gap to measure the impact of gerrymandering, which counts the number of votes that do not contribute to a victory (indicating a lopsided outcome indicative of a gerrymandered district). This measurement has become increasingly popular in social science circles, and serves as a key part of the plaintiff’s argument in the Wisconsin case .
Most court watchers agree that Justice Kennedy is the swing vote on gerrymandering, given his previous indications of willingness to strike down maps. One of Justice Kennedy’s main concerns raised in oral arguments, however, is that a decision in favor of the Wisconsin plaintiffs without a clear standard will open the floodgates to every instance of partisan redistricting being challenged in court. What that standard should be, and how to base its invention in legal precedent, remains the challenge the court will have to face.
 Howe, Amy. "Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?" SCOTUSblog. October 03, 2017. Accessed January 25, 2018.
 Lopez, German. "The Supreme Court's big racial gerrymandering decision, explained." Vox. May 22, 2017. Accessed January 26, 2018.
 Liptak, Adam, and Alan Blinder. "Supreme Court Temporarily Blocks North Carolina Gerrymandering Ruling." The New York Times. January 18, 2018. Accessed January 26, 2018.
 Lai, Jonathan, and Liz Navratil. "Pa. Republicans ask U.S. Supreme Court to halt redistricting order." Philly.com. January 25, 2018. Accessed January 26, 2018.
 "Here's how the Supreme Court could decide whether your vote will count." The Washington Post. Accessed January 27, 2018.
Source: Corey Lowenstein/The News & Observer, via Associated Press
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.