SCOTUS Agrees To Hear Partisan Gerrymander Case But Disenfranchises Voters in 2018

While it is potentially good news that the Supreme Court has agreed to hear a case about politically partisan gerrymandering, the problems with enforcement and remedy still exist and remain unaddressed. The specific case that the Court will hear Gill v. Whitford, a Wisconsin case that specifically targets partisan gerrymanders that "wastes" one party's votes by packing them into creatively drawn districts.

Technically, partisan gerrymanders violate the First Amendment but the Supreme Court and its conservative majority have shown no interest in hearing, much less ruling on, partisan gerrymander cases. Certainly part of that desire is the general conservative attitude that voting rights are not all that important and that it is largely the domain of the states, not the courts. In addition, even if they agreed that partisan gerrymanders were unconstitutional, it seemed impossible to find a standard by which that could be reasonably judged.

The Court actually tried to shut the door on these cases in 2004 and basically did so in the classic conservative 5-4 decision. Justice Kennedy, a member of the majority, however, wrote his own concurrent opinion in which he declared that the Court should act "if workable standards do emerge to measure these burdens". With the use of big data and advanced computing methods, it is now possible to compare the numbers of votes of each party that are "wasted" in these partisan gerrymanders and an obviously large disparity would certainly indicate that the gerrymander violates the Constitution. It remains to be seen whether this amounts to a "workable standard" that will sway Justice Kennedy.

On the other hand, an additional ruling that went along with the decision to hear the Wisconsin case was a similar 5-4 ruling not to uphold the lower court's ruling that struck down the current district maps as an unconstitutional partisan gerrymander and instructed the maps be redrawn for the 2018 election. Just to show you how bad the Wisconsin maps have been, in the 2012 election Democrats won 53% of the total vote but ended up with the Wisconsin Assembly controlled by Republicans with 60 seats compared to the Democrats 39. In that election, it was estimated that it took 1.74 Democratic votes to offset just one Republican. In around a dozen other states in 2012, Democrats won more votes but ended up not in control of at least one house in those states' legislatures. Not all of these were the result of partisan gerrymanders but a number certainly were.

This related ruling means that now Wisconsin voters are being asked to live under an unconstitutional system again in 2018 and again mainly Democratic voters will be effectively disenfranchised. This means that, once again, voters in Wisconsin, primarily Democrats, will have their votes "wasted" in 2018. So much for democracy.

This situation simply highlights the weakness of relying on the courts to stop unconstitutional electoral laws. This extends beyond gerrymandering and into voter registration issues, early voting, the number of voters per voting machine and other voting rights issues. These cases take so long to adjudicate that many voters are effectively disenfranchised not just for one election but for multiple election cycles. In this decade, there are voters in a number of states who will have voted more times in an unconstitutional system than not. That is simply unacceptable in a real democracy.

Obviously, there is no easy solution to this gerrymander problem. Even having the Supreme Court come up with a workable standard, which is still a reach as it is, will not solve the problem of delayed justice that plagues our voting systems. A number of states have come up with independent non-partisan commissions that draw electoral districts with "communities of interest" as one member of California's redistricting commission describes it. But, again, those commissions are only as good as the people appointed but they are certainly better than what we have now.

Just like increasing Social Security and the fight for $15, the system will not change until we, as Democrats, start talking about real electoral reform and make it an important part of what we stand for. That can be done through ballot initiatives or actual legislation. Yes, we still have to fight all the AHCA and massive tax cuts with everything we've got. But we also can't lose sight of the fight for voting rights and real electoral reform because that fight is a fight for our democracy.