Photo credit: Matt Wade
The bad news, sad to say, is the U.S. Supreme Court passed up a chance to strike down Wisconsin’s brazenly corrupt political gerrymandering that supporters of democracy hoped would finally lead to fairer, more honest election districts throughout the country. One tiny, positive glimmer was that, even though the high court still has a conservative majority, only the two most extreme-right justices—Clarence Thomas and new Donald Trump Justice Neil Gorsuch—wanted to throw out the case entirely and free Wisconsin Republicans to be as openly corrupt in drawing voting districts as their unscrupulous, little hearts’ desire.
The reason Wisconsin’s redistricting was before the Supreme Court in the first place was the dishonest gerrymandering by Gov. Scott Walker and his Republican legislature was among the most extreme in the nation in distorting the political intentions of the state’s voters.
Here’s how it worked. Every 10 years after a new U.S. census, politicians in every state draw new boundaries for voting for legislative and congressional seats incorporating population changes. In Wisconsin, Walker and Republicans had total control of the legislature after the 2010 tea party midterm backlash against the election of America’s first African American president.
A Republican law firm used sophisticated computer software to create one of the most distorted partisan state voting maps in U.S. history. When Democrats challenged the map in federal court, two members of a three-judge panel ruled the extreme gerrymandering unconstitutionally violated the voting rights of Wisconsin’s citizens. “Republicans would maintain a majority (in the 99-seat Assembly) under any likely voting scenario,” U.S. District Judge J.P. Stadtmueller wrote, “Indeed, they would maintain a 54-seat majority while garnering only 48% of the statewide vote.”
Turning Losers into Winners
Actually, Stadtmueller underestimated just how corrupt the redistricting was. The Republican map was used in 2012 while the case was being appealed. The judge was right on target about Republican turnout. Republicans won 48% of the vote statewide, but they won an even greater majority in the Assembly: 60 seats compared to 39 for the Democrats, who won 174,000 more votes statewide than the Republicans. Obviously, the losing party in the state winning a 21-vote majority in one legislative chamber is a total distortion of democracy.
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The basic tactics of dishonest political gerrymandering are “Packing and Cracking.” The opposition party’s voters are “packed” into the fewest possible districts, and the rest of their voters are “cracked”—scattered across so many different districts they can never determine the outcome of an election.
Since 2004, Supreme Court Justice Anthony Kennedy—a Ronald Reagan appointee and possibly the last Republican justice to care more about democracy than partisan political advantage—has expressed an interest in finding a test to define when partisan gerrymandering becomes so extreme that it violates the First Amendment rights of a minority party’s voters by punishing them for their political views. The challengers in Wisconsin believed an outrageous 21-vote Assembly majority won by the losing political party was extreme enough for Kennedy to finally write a landmark majority decision ending politically corrupt redistricting. Alas, not yet.
Provide the Evidence
The Wisconsin case now returns to the federal appeals court with a majority opinion from Chief Justice John Roberts instructing challengers to focus on providing evidence that voting rights were violated in each individual district rather than statewide. That simply clouds the issue since the whole reason to corruptly manipulate district boundaries is to create a larger majority statewide for one party in the legislature and within that state’s congressional delegation.
Fortunately, there is another corrupt gerrymandering case very similar to Wisconsin’s that could be headed for the Supreme Court as early as next year focusing squarely on individual voting districts. Like Wisconsin, North Carolina is close to a 50-50 state in major elections, but a Republican congressional map there created 10 Republican-majority districts and three Democratic districts. The legislator behind the map said the only reason it wasn’t less representative was it was impossible to draw one electing 11 Republicans and only two Democrats.
Justice Roberts mocked formulas proposed in the Wisconsin case to determine when partisan gerrymandering was so extreme as to unconstitutionally deny voting rights. He called such tests “sociological gobbledygook.” But the only real test is whether the results of elections reflect the will of the voters. Elections that produce 21-vote majorities for the losing party completely fail that test. Voters in both political parties now recognize gerrymandering is the way corrupt politicians keep themselves in power. So far, at least seven states will vote on ballot initiatives this fall to turn redistricting over to independent, bipartisan commissions.
In a concurring opinion, Justice Elena Kagan warned putting off a decision in the Wisconsin case would only delay the job of cleaning up corrupt gerrymandering. “The 2010 redistricting cycle produced some of the worst partisan gerrymandering on record,” Kagan wrote. “The technology will only get better, so the 2020 cycle will only get worse.”
