The Political Gerrymander

Graphic Explainer: Gill v. Whitford (SCOTUS argument October 3, 2017)

The Supreme Court does not often declare itself impotent, but when it does, it couches its insecurity under the guise of respect.

Separation of powers is the rationale the Court uses to declare some legal issues too "political" for courts to get involved. They call these legal questions "unjusticiable," or "political questions." Political questions are matters unsuited for the judicial branch, and the Court will decline to make a decision. 

However, failure to intervene leads to a result nonetheless.

The question in Gill v. Whitford - to what extent political gerrymandering is justified - was declared to be a "political question" by a 4-member plurality of the Court in a case in 2004 (Vieth v. Jubelirer). Court avoidance meant the practice stood.

Gerrymandering is a sly method that state officials may use to draw legislative district lines so that they can influence election results.

Racial gerrymandering, for example, might put a large group of black people in one jurisdiction so that their votes are contained (all used up for one candidate, rather than spread into several jurisdictions to potentially take more proportion of the total district results). Political gerrymandering is similar, but instead of sectioning voters based on race, the political party in power draws lines to contain the voters of the opposing party.

In Gill v. Whitford, Wisconsin Democrat voters sued members of the Wisconsin Elections Commission, claiming the Republicans who controlled the legislative districting process unfairly distributed the voting share to ensure Republicans would win a majority of the seats.

Before the districting process at issue, Republicans with 43% of the vote won 46/99 seats (just over 46%) and after the process, Republicans with, at that time, 47% of the vote won 60/99 seats (just over 60%). See a helpful graph: NYTimes.

Republicans secured 14 more seats with the new district lines, enough to comfortably secure the majority.

This may seem egregious to some, but political gerrymandering always has been a part of our nation's history and is accepted to an extent. As Justice Stevens put it, "Political factors are common and permissible elements of the art of governing a democratic society," (said in dissent, before acknowledging there must be a limit, Vieth v. Jubelirer, 2004).

Perhaps the Court can agree by majority this time.

This case will indicate whether the Court wants to declare how far is too far: when does one party's control of the election process cross the line to be unjustified entrenchment of political power? Will the question again be declared outside of the judicial province, or will the Court create a standard by which to evaluate it?

Origin of the word "gerrymander" 

Scalia recounted the origin of the word in the Vieth v. Jubelirer 2004 opinion. "Gerrymander" came to be after an 1812 political district formation championed by Massachusetts Governor Elbridge Gerry was said to result in a district that looked like a salamander.

Procedural history

Cases in the Supreme Court usually come from one of the nation's 13 Circuit Courts of Appeals. However, this case is different. Cases challenging a state's legislative districting actions are heard at the first "trial" level by a special three-judge panel of a federal district court. Decisions by three-judge district court panels are appealed directly to the U.S. Supreme Court (instead of the common intermediate step of an appeal to a Circuit Court of Appeals). The district court where this case started is the Western District of Wisconsin. 

See our federal court hierarchy page.