A Line the High Court Shouldn’t Cross - Gill v. Whitford

Today, the Wall Street Journal published an opinion by RNLA Co-Chair John Ryder on the topic of Gill v. Whitford, the Wisconsin state redistricting case before the U.S. Supreme Court. Mr. Ryder understands this issue better than most as a former general counsel of the Republican National Committee.

In the commentary, Mr. Ryder nicely summarizes Whitford as this:

The plaintiffs will present a series of equations giving the illusion of precision and, they hope, masking their underlying political motivation. If the justices accept the plaintiffs’ argument, or any of its variations, it would put the courts deep into what Justice Felix Frankfurter called the “political thicket” of drawing political maps. More important, it would undermine a bedrock principle of American politics—that we elect representatives based on electoral districts, not proportionally as in many European countries. 

The idea that judges have any say in the mapping of political districts is relatively novel. Until Baker v. Carr in 1962, the Supreme Court had routinely held that redistricting was a “political question,” beyond judicial review. Baker presented the court with an egregious case of abuse [which compelled the Court to take action] . . . Baker held that the courts could order a redistricting to correct this imbalance. . . . Fast forward 55 years, and we have plaintiffs who argue that because redistricting hasn’t yielded the results they want, they are entitled to judicial intervention. Their theory comes down to this: A political party’s representation in a state legislature should be close to its statewide vote total in legislative elections.

Whitford could potentially upend how districts are drawn and the standards by which districts are measured:

The consequences of this proposition would be immense. First, it would require the court to settle on the correct formula. . . . It raises the possibility of endless litigation over the correct standard, with judges struggling to make sense of testimony from dueling mathematicians. In the end, it would require courts to determine the “appropriate” political balance in the state. . . . Second, such a standard would likely require bizarrely configured gerrymanders in order to achieve the judicially determined political balance. Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” . . . From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%. . . . The only way to avoid that is to draw elongated districts that splinter communities and are gerrymandered to achieve a judicially determined political result.

Mr. Ryder concludes by arguing the U.S. Supreme Court has the chance to prevent a further descent down a slippery slope, the ultimate end of which could fundamentally change the means by which our representatives are elected.

It changes the basis of representation from district-based to proportional. Instead of representing a community that is mostly compact and cohesive, the lawmaker would be selected according to a statewide partisan balance determined by the court. . . . In Gill v. Whitford, the Supreme Court has an opportunity to put an end to this nonsense by finding that the lower court ignored precedent and misapplied the law. It should do so in order to preserve our democracy.

The Supreme Court heard oral arguments this morning for Gill v. Whitford, a case likely to be one of many landmark cases for the 2017 Term. You can view the released court transcript from today's argument here. An audio recording of the proceedings is expected by the end of this week and should be posted here.