Let’s Call The Supreme Court's Gerrymander Inaction What It Really Is: A GOP Win

For nearly a decade, Republican politicians elected in districts drawn for them have been making law.

As the U.S. Supreme Court still can’t figure out what to do about extreme partisan gerrymandering, the justices’ failure to act has already had a deep impact on laws and policies across America.

On Monday, the court passed on deciding the merits of a Wisconsin case that could have set limits on gerrymandering for political gain, instead sending the dispute back to a lower court on procedural grounds. The justices’ decision means that the GOP-friendly map for the Wisconsin state assembly will remain in place for now.

That’s frustrating for William Whitford, a Democrat and the lead plaintiff in the lawsuit. The Supreme Court may yet one day strike down the Wisconsin map as an unconstitutional partisan gerrymander, but more delay is essentially a victory for Wisconsin Republicans, helping them maintain their control of the state assembly. GOP lawmakers, who have been elected under the map since 2012, get even more time to pass laws that may not reflect the real wishes of state voters.

“This case was filed in 2015. [At the time, we’d] had two elections under what I think is a clearly unconstitutional apportionment already that I think gives the Democrats no chance of getting a majority,” Whitford told reporters after the Supreme Court’s ruling on Monday. He said the maps had “many negative consequences in Wisconsin in terms of policy.”

A political party gains considerable advantage when it gerrymanders district boundaries. To make a strong enough case that the gerrymandered map has entrenched one party in power, challengers often wait for the results from a few election cycles. Even when someone sues to overturn the map, lawmakers elected under it keep their seats.

Michael McDonald, a political science professor at the University of Florida, said parties in power have clear incentives to gerrymander.

“There is little to no moral hazard when it comes to gerrymandering,” McDonald said. “A gerrymandering party is likely to run one or more elections under an unconstitutional map, the voters in the state will foot the legal bill, and rarely, if ever, are candidates held accountable at the ballot box.”

At the Supreme Court, the fate of partisan gerrymandering likely depends on Justice Anthony Kennedy. In a 2004 case, the justices split on whether there was a workable standard to determine when partisan gerrymandering becomes unconstitutional. Kennedy wrote that such a judicial standard may exist, but that he hadn’t seen it yet. Because of that opinion, he remains the crucial swing vote in any decision on partisan gerrymandering.

But while Kennedy has been pondering, Republicans in 2010 targeted legislative races in states where they saw an opportunity to manipulate the post-census redistricting process. With control of legislatures in Wisconsin and several other states, they were able to gerrymander new congressional and state district boundaries to their advantage, giving them the power to pass laws and shape policy over the next decade.

In an email to HuffPost, Whitford pointed to several measures passed since 2012 by Wisconsin lawmakers who were elected under those arguably unconstitutional maps. The measures include a 2015 right-to-work law and cuts to public education. The outcome might have been different, Whitford suggested, if state assembly districts had been drawn more fairly and legislators were under more pressure to compromise across the aisle.

Plaintiffs in North Carolina, Ohio, Michigan and Maryland are also seeking to strike down congressional districts, arguing that they’re the product of unconstitutional partisan gerrymandering. But even as those cases have moved through the courts, legislators from those states have voted on health care, immigration, taxes and other important issues. Should the Supreme Court eventually restrict partisan gerrymandering, it still can’t undo the policies those lawmakers enacted in the meantime.

Justin Levitt, a former top Justice Department official and current professor at Loyola Law School in Los Angeles, said Whitford’s complaints help show why electoral disputes are different. In most other civil cases, he said, it’s possible either to block harm before it happens or to make the plaintiffs whole after the fact.

“People elected under unfair rules and by unfair systems are sitting and making policy in the meantime. Policy doesn’t stop,” Levitt said. “There is no way to make a plaintiff whole after an unconstitutional election happens. And all of the policy that results, sticks.”

“It is an overused phrase but particularly apt here: Justice delayed is justice denied,” he added.

If the Supreme Court does someday set limits on partisan gerrymandering, the details of the new standard will affect how quickly challengers can move to strike down a map. Kathay Feng, national redistricting director at Common Cause, said the court could require challengers to wait a few elections to show that one party had obtained a durable advantage. Alternatively, the court could require challengers to show only that the party in power intentionally drew a map to put the other party at a disadvantage. A more aggressive standard like that, Feng said, would allow lawsuits to move forward sooner.

Some groups are already taking action to head off lengthy court battles over the next round of redistricting after the 2020 census. In Ohio, advocates got a measure on this year’s ballot designed to give both parties a voice in drawing the state’s congressional map. Citizen-led initiatives to create independent redistricting commissions will be on the ballot in other states this fall.