On Monday, the Supreme Court announced that it would hear Gill v. Whitford, a Wisconsin-based case that is the most promising challenge to partisan gerrymandering to come up through the courts in over a decade.
Wisconsin Rep. Glenn Grothman (R) responded to the news by arguing there shouldn’t be any rules around how political parties draw district lines at all.
“I’m not sure there should be any restrictions whatsoever, because I don’t think it is the court’s business to draw lines,” Grothman told Matt Kittle of the conservative MacIver Institute in a Tuesday radio interview. “There are many rules right now — that the courts have laid out — that if you want your redistricting map approved you have to meet.”
You can listen to his remarks here, starting around 12:00:
The Supreme Court has shown some willingness to strike down racial gerrymanders — though that hasn’t stopped Republican legislatures from trying. In recent years, multiple states have had their legislative maps struck down by the courts for being racially discriminatory.
Partisan gerrymandering, by contrast — which is when a majority political party redraws the lines of the district maps to make it easier for them to win their next elections — is a murkier legal area: In a 1986 case, the Supreme Court held that partisan gerrymandering could be found unconstitutional, but didn’t specify how the courts could determine what was a constitutional redistricting and what was an unconstitutional gerrymander.
Then in 2004, Justice Scalia handed down an opinion on Vieth v. Jubelirer arguing that there is no “judicially enforceable limit on the political considerations that the States and Congress may take into account when districting,” so the courts should simply get out of the business of policing political gerrymanders altogether. Scalia’s opinion, however, was joined by only three other justices.
Justice Kennedy, meanwhile, offered a glimmer of hope to opponents of gerrymandering, writing that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
But for the most part, the courts left partisan gerrymandering alone — paving the way for a 2010 redistricting by Republican-controlled legislatures (aided by unprecedented computer modelling power) that left Democrats with the hefty task of needing to win 55 percent of the national vote in order to win a majority of House seats, according to one analysis. In 2012, for example, Democrats won 50.59 percent of the two-party vote —garnering 1.17 percent more votes than the Republicans — but ended up with only 46.21 percent of the seats.
Now, the Supreme Court is set to hear a case aimed specifically at swinging Kennedy against partisan gerrymandering by offering a mathematical formula for measuring which maps are constitutional, and which should prescriptively be viewed as partisan gerrymanders. Using this formula, the plaintiffs challenged Wisconsin’s state assembly districts, and a three-judge panel struck down these districts as an unconstitutional partisan gerrymander.
Grothman, as a state senator, helped draw the district lines that are under challenge.
“At great expense, and after hiring very expensive lawyers, the first set of lines were drawn. And obviously they should be upheld,” he told Kittle in the interview, saying that the current case was an example of “new, bizarre legal theories which are being used to strike down these lines.”
If the Supreme Court agrees with the lower court that Wisconsin’s voting lines are unconstitutional, the case could have a huge ripple effect on both state legislative and congressional districts throughout the nation — and thus on how Americans are represented in congress going forward. But in a troubling sign for opponents of gerrymandering, on Monday the court also issued a stay of the lower court’s decision striking down the maps. The stay was issued on a strictly party-line vote.
Grothman, however, isn’t convinced that judicial partisanship will be enough to keep Wisconsin’s maps alive — though in almost the same breath, he attacked the Judiciary for being too political.
“We have been let down by judges appointed by Republicans before, we’ve been let down by Justice Thomas before, we’ve been let down by Justice Kennedy before,” he said. “They had better prevail, that’s all I can say.”
“There are judges right now on the Supreme Court and otherwise who always say that they will distort laws to get the conclusion that they want. This is one of the reasons I think that Donald Trump was elected, because people are scared to death that anything the legislature does will be thrown out by a court,” he added.