It's time to draw the line (again)

Charles Kramer, The Levison Group

Tuesday October 3, 2017, should be a day of import, but not of history. It was be the day that the United Supreme Court heard oral argument in Gill v Whitford, a case involving the Wisconsin State Assembly concerning partisan gerrymandering.

Gerrymandering refers to an elected body’s re-drawing of the boundaries of the voting districts that are used in electing people to serve in that body. Partisan gerrymandering occurs when the political party which controls the majority of the votes in the elected body uses that majority power to cause voting districts to be redrawn in a manner which it believes will create districts which contain a majority of likely voters who will be likely to favor their party in future elections. Most states use “winner take all” procedures that provide that the candidate who wins the majority of votes within a district has all of that district’s votes cast in his or her favor in the election. As a result, if successful, partisan gerrymandering increases the likelihood that members of the majority party will win future elections, continuing the party in majority control.

Such line drawing for political gain has been prevalent in our nation’s political process from the outset. Early in our history, the practice lead to an infamous district that was shaped roughly like a salamander.

Although the practice seems patently unfair, generally the design of election districts has been deemed a legislative function, with which the Courts will not interfere. In fact, several of the sitting justices have remarked in the past about the practical difficulties which would result if the courts had to police each redrawing of district lines. With population shifts, increases and decrees, it is appropriate to redraw boundary lines periodically, and the courts may not be equipped to hear challenges each time a line is changed.

 However, there have been limits imposed by the High Court before. In 1964, in a case that involved the size, not the geographic boundaries, of districts, the U.S. Supreme Court ruled that each voting district within a state must, at least, contain roughly the same number of people as the others. The Court ruled this was necessary to ensure that each member of the state’s vote carried the same weight. Otherwise, the Court held, the democratic principle of one person one vote would be damaged, and the Equal Protection clause of the U.S. Constitution would be violated. The plaintiff in the case now before the Court claims the same impact results from partisan gerrymandering. Designing districts so that one party’s members are in the minority in all, or substantially all, voting districts effectively makes those voters’ votes worthless, they argue—and it would seem they have a point.

Given the judicial leanings of the current Supreme Court, it appears likely that the case will result in a 4-4 split, with Justice Kennedy making the tie-breaking decision. In 2004, in a case called Vieth v Jubelire, Kennedy noted his belief that the Supreme Court’s 1964 opinion required redistricting to be done in a manner to ensure fair and effective representation of all citizens, but that it was not clear what that meant or required. Kennedy declared the judiciary lacked any meaningful method it could employ to establish politically neutral standards against which gerrymandering could be judged. He did note, however, the evolving technology of the day, and observed that with increasing data collection and analysis technology available, the courts could one day have effective tools with which to determine whether district lines unduly burden equal protection or first amendment rights. Perhaps not unsurprisingly, in the current Wisconsin case, several non-parties have sought and received permission to file their own briefs with the Court (so called “friend of the Court” briefs), and the briefs of the parties and nonparties alike assert such technologies, both as tools to evaluate the severity of the partisanship result in Wisconsin, and as tools for the Court to use in adopting a standard against which line drawing could be judged on a going forward basis.

The argument could be more important than most oral arguments tend to be. What is said in open court, could very well sway Justices’ views on what many consider a close call.

Yes, Oct. 3, 2017, will be a day of import. As indicated above, however, it will not be one of history. The dates cases are decided through the issuance of the Court’s written decision, and occasionally, but a lot less often, the dates the cases were originally filed, become historic markers. However, the dates upon which oral argument is presented to the Court, are virtually always lost to history, regardless of whether the arguments impact the decision of not. Once the arguments are “in the books,” attention and scrutiny will move on, and October 3rd will once again be known simply as the 276th day of the year, and the day upon which Vercingetorix, leader of the Gauls, surrendered to the Romans under Julius Caesar in 52 BC, East and West Germany were officially reunified in 1990, and Orenthal James Simpson was found “not guilty” of the murders of his exwife Nicole and celebrity wannabe Ron Goldman in 1995.

Still, despite the unlikelihood that tomorrow will live in infamy, there is no doubt that the oral exchange, and the questions asked by the Justices, will give insight into the Court’s views, and perhaps Judge Kennedy’s leanings. It is a mundane subject, but one which could have a substantial impact on our nation’s political structure, and indeed our nation’s future. Stay tuned to Twitter.

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Under Analysis a column from the Levison Group. Charles Kramer is a principal of the St Louis based law firm, Riezman Berger PC. Any comments, questions or criticisms of or relating to this column may be sent to the Levison Group in care of this paper, or direct via email to comments@levisongroup.com.
©2017 Under Analysis Distribution LLC

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