The partisan gerrymandering beauty pageant is returning to the Supreme Court next fall for a limited engagement for an audience of one: Justice Anthony Kennedy. Whether or not Kennedy sees something he likes will go a long way toward determining whether courts will play a role in reining in some of the most partisan activity in American politics.
On Monday the Supreme Court agreed to hear Gill v. Whitford, a case considering the constitutionality of the Wisconsin Republican legislature’s state assembly districts, which greatly favor Republicans over Democrats despite near parity in support in the state. As the challengers to Wisconsin’s district plan explained, “Wisconsin’s Assembly … bears no resemblance to its evenly split electorate. In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while losing the statewide vote. In 2014 and 2016, Republicans extended their advantage to sixty-three and sixty-four seats, respectively, even though the statewide vote remained nearly tied.”
For decades, voting-rights advocates who believe there is something unfair in letting partisan actors have free rein in drawing districts have looked to the courts to police to most egregious efforts to draw district lines to favor one party over another. Among other things, opponents of partisan gerrymandering have argued that allowing legislators to pick their voters rather than the other way around violates the Constitution’s equal-protection clause. The problem has been identifying when acceptable consideration of political party information to group similar voters together crosses the line into unconstitutionality.