Year of the Gerrymander

Tipping point. An idea whose time has come. Don’t get caught on the wrong side of history. All various takes on the concept known as the theory of punctuated equilibria in social systems. In a sentence, change happens slowly and incrementally, if at all, until there is a sudden avalanche of rapid change. I originally encountered the idea of punctuated equilibria in my engineering career, when I studied cascading failure modes and catastrophe theory models of dynamic systems. (I believe the term “punctuated equilibrium” originally came from studies of evolution.) I’m a believer that it applies to societies as well.

Gerrymandering is an abuse of the process of drawing electoral district boundaries in order to advance the interests of some particular group. The use of the term dates to 1812, involving the boundaries for Massachusetts state senate districts, and was made famous by a political cartoon of that time. Partisan gerrymandering – the sort practiced in 1812 that led to the name – involves elected officials drawing boundaries to maintain representative majorities for their political party. Historically, US courts held that partisan gerrymandering was non-justiciable; it was a political problem subject to political solutions, not a matter for the courts. In 1986, in Davis v. Bandemer, the US Supreme Court ruled that partisan gerrymandering was within the courts’ purview. Notably, they did not set any standards to determine when a particular gerrymander became unconstitutional.

Change, when it happened at all, has happened slowly and been focused on methods that reduced the role of elected legislators. Some states have taken the district-drawing power largely out of the hands of elected legislators by creating redistricting commissions and boards. In the case of Washington, the legislature voluntarily gave up most of its redistricting power. In others, the authority was forcibly removed by citizen initiatives. In Arizona v. Arizona, the Supreme Court upheld the validity of such initiatives. In some cases such boards act only in an advisory role rather than having the final say on district boundaries. In most cases the board structure is intended to require members selected by the two major political parties to agree on a redistricting plan, excluding participation by minor parties or independents. Largely, the courts have been uninvolved.

But suddenly, over the last several months, that changed. Courts have been finding all sorts of district maps that they deemed unconstitutional partisan gerrymanders:

• Gill v. Whitford, in federal court, involving Wisconsin’s state legislature districts.
• Benisek v. Lamone, in federal court, involving Maryland’s congressional district map.
• A North Carolina case, in federal court, involving congressional districts.
• Two Texas cases, in federal court, one involving state legislature districts and the other congressional districts.
• A Pennsylvania case, in the Pennsylvania supreme court, involving congressional districts

The US Supreme Court accepted the Wisconsin and Maryland cases for the current term. Oral arguments for the Wisconsin case were made on October 3, 2017. In the Pennsylvania case, the court ordered the legislature to draw new maps on a very tight schedule. If the legislature has not drawn up a new map, and the Pennsylvania governor approved it, by February 15, the court said it would draw a map itself. The US Supreme Court declined to issue a stay of that order.

One aspect of the Wisconsin case that I think is important is that the Democratic plaintiffs did not argue that representation in the state legislature should reflect the state-wide voting share. They acknowledge a political geography that results in Democratic voters being concentrated in some urban districts, and that districts legitimately drawn to reflect communities of interest will give the Republicans an advantage. Plaintiffs’ expert witnesses estimate that Democrats would need to win statewide by about seven percentage points (53.5% to 46.5%, ignoring third parties) in order to gain a majority of the 99 seats in the lower chamber of the state legislature.

The fun question is which way will the Supreme Court jump? I have asserted for years that one of Chief Justice Roberts’s concerns is how “his” Court will be viewed by the historians. Being on the right side of history isn’t his only thing, but it’s a thing. I think we’ve reached the tipping point, and Roberts doesn’t want to be caught on the wrong side of history. My prediction for Gill and Benisek from Wisconsin: 6-3, the majority consisting of Roberts, Kennedy, and the liberals, will rule the map to be an unconstitutional partisan gerrymander. By 5-4, the Court will adopt a statistical standard for when a district map represents an unconstitutional partisan gerrymander. Breyer writes the opinion. Similarly for the Maryland case, which will bring US Congressional districts under the same standard.