The most important election law case before the United States Supreme Court this term is Gill v. Whitford, a partisan gerrymandering case from Wisconsin. In 2011 the Republican legislature drew the state’s district lines with the goal of building an insurmountable partisan advantage for the GOP. The 2011 Wisconsin redistricting plan packed Democratic voters into districts in the Madison and Milwaukee areas while evenly dispersing Republican voters over the rest of the state’s districts. The results were predictable. In the subsequent round of state Assembly races, Republican candidates garnered less than half the popular vote, but they won 60% of the Assembly seats.
To be sure, it’s not just Republicans who engage in partisan redistricting. With a handful of exceptions, most states (red and blue alike) employ nakedly partisan criteria for legislative and congressional line drawing. Indeed, while it mulls the Gill case, the U.S. Supreme Court recently granted certiorari to a case out of Maryland, Benisek v. Lamone, in which Republican plaintiffs have challenged the Democratic legislature’s 2011 redistricting plan.
But there is no doubt that in the 2010s, partisan redistricting has benefited Republicans far more than Democrats. Sweeping Republican state house victories in 2010 gave the GOP control of a critical mass of legislatures during the crucial 2011 session, when every state conducted its decennial redrawing of legislative and congressional district lines following the U.S. Census. Republicans also reaped the benefits of new and highly advanced computer programs that made the art of the partisan gerrymander more potent than ever before.
Not surprisingly, therefore, Democrats have urged the Supreme Court to invalidate partisan redistricting on both free association and equal protection grounds. There is at least some room for Democratic optimism. During oral argument in October, Justice Kennedy (the swing vote) seemed receptive to the Gill plaintiffs’ arguments. Moreover, by granting cert to the Benisek case in December, the Supreme Court may have hinted at a favorable ruling for the plaintiffs. Gill involves a Republican redistricting plan, and during oral argument Chief Justice Roberts warned that a ruling to strike down the Wisconsin GOP gerrymander might strike many ordinary Americans as evidence that “the Supreme Court preferred the Democrats over the Republicans.” However, Benisek involves a Democratic plan, which means that the justices now have the opportunity to simultaneously invalidate both a Republican and a Democratic gerrymander. By granting cert to Benisek, therefore, the justices have bipartisan cover to take on partisan redistricting.
But would the demise of partisan gerrymanders actually be good for the Democrats in the long run? Between 2010 and 2016, over 1,000 Democratic legislators around the country were defeated as the nation shifted to the right politically. Today, however, the nation’s political landscape may be on the verge of changing once again. In 2017 Democrats won an impressive number of elections across the country, and every year that passes the Democrats’ demographic advantages grow more pronounced. When combined with President Trump’s extraordinarily low poll numbers, the trendlines suggest a blue wave could be on the horizon. If Democrats flip enough state legislatures from red to blue in 2018 and 2020, they will have a commanding position when the next redistricting process begins in 2021.
Ironically, therefore, Republicans could end up as the biggest beneficiaries of a Supreme Court ruling that strikes down partisan redistricting. If Gill and Benisek bring the demise of gerrymandering, Democratic legislatures in 2021 won’t be able to do what Republican legislatures did in 2011.
Moreover, even if the 2021 redistricting process is conducted in a fair and non-partisan fashion, Republicans will still possess a structural advantage. Democratic voters tend to be concentrated in metropolitan areas with high population density, whereas Republican voters tend to be located in low population density areas spread over a large geographical area, such as exurbs and rural counties. Consequently, even when legislatures draw district lines in a neutral fashion, Democratic voters are concentrated in a smaller number of districts than they would be if they lived over a broader geographic area in a more evenly dispersed fashion.
Thus, it’s entirely possible to imagine that if Republicans find themselves out of power in 2021, during the next redistricting cycle, they will have reason to applaud the demise of extreme partisan gerrymanders.
It is of course impossible to know how the 2018 and 2020 state legislative elections will actually play out. Political trends change faster than the weather. But at a minimum, it is worth keeping in mind that legal developments do not necessarily have the political ramifications that the conventional wisdom assumes.
Good post, Anthony. Partisan gerrymanders are bad for democracy, no matter which party benefits or loses. As a Democrat, I would gladly seen an end to such unfair and imbalanced redistricting, even at the cost of a short-term political advantage for my party.
Posted by: Steve L. | January 28, 2018 at 07:33 PM
I agree 100%, Steve. I hope the Supreme Court rules for the plaintiffs in both cases. Thanks for your comment!
Posted by: Anthony Gaughan | January 28, 2018 at 08:23 PM
One party rule is bad for rural/semi-rural Illinois ( all GOP) and bad for Metro East/Cook County (All Dems). Concentrated power is not only undemocratic, but leads to unbalanced public policy and outcomes.
Posted by: Deep State Special Legal Counsel | January 28, 2018 at 09:16 PM
I agree that competition is healthy for democracy.
Posted by: Anthony Gaughan | January 28, 2018 at 10:20 PM