John Ryder on Whitford: Plaintiffs Ask Courts to Make Political Judgments

RNLA Co-Chair John Ryder wrote a post-oral argument summary of the issues in Gill v. Whitford, the Wisconsin political gerrymandering case, in the Daily Caller today.  He outlined how the Plaintiffs challenging the district boundaries in Wisconsin would like courts to make political judgments far outside a proper judicial role that would completely change how districts and representation are viewed:

Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court. 

The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution. 

As Mr. Ryder points out, Chief Justice Roberts questioned the serious danger for the proper role of the courts posed by the Plaintiffs' theories during oral argument:

[I]f the claim is allowed to proceed, there will naturally be a lot of those claims around the country. . . . We will have to decide in every case whether the Democrats win or the Republicans win. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country. . . . [T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to . . . sociological gobbledygook.

The Chief Justice was not alone in his criticism:

Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.” . . . Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections. . . .

We hope that the Supreme Court will not take the bait and drastically expand the role of the courts into making political judgments and predictions that even professional political scientists would struggle to make.  As Mr. Ryder concluded:

In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.