Supreme Court and constitutional law roundup


  • Walter, your preferences in the gerrymandering case before the Court are shaped by your experience in Maryland where a Democratic legislature and governor in a state that is heavily Democratic chose to squeeze out even more Democratic congressional and legislative seats by drawing boundaries that would allow for “wasted” Democratic votes, primarily in Baltimore and PG County to be used to offset moderate to conservative voting areas otherwise.

    However, Wisconsin is, and has been, a closely divided state. Yes, the Republican governor and legislature squeezed out a couple of legislative seats in 2011. However, since then Republican dominance of the legislature under those boundaries has been extended. The reason for this has been that while the state balance remains close, rural and small town areas traditionally Democratic have moved right while the Madison area and the city of Milwaukee have become even more Democratic. In the 2014 governor’s race, there were Milwaukee precincts that voted 99%, and Madison precincts voting 95% Democratic.

    The inherent problem facing Wisconsin Democrats is that their supporters are inefficiently located for legislative races, not the boundaries drawn. The Brennan Center’s paper on this issue to support judicial intervention ignores this reality all together and assumes that if statewide voting patterns are not reflected in legislative elections, gerrymandering must be the cause. As I understand the arguments being made by the Democrats in this case, the kind of Illinois/Maryland gerrymandering that allows districts to be drawn so that the votes of African American and college town areas to offset otherwise mildly Republican suburban and rural areas would not only be permitted, but essentially mandated.

    We already have one set of Congressionally mandated gerrymandering practices in the Voting Rights Act. Most of the districts shown in newspapers as outrageous examples of gerrymandering are in fact districts drawn to comply with that Act. Theoretically, the courts could intervene to require geographically compact districts without regard to what this means for party balance in a legislature. However, that’s not what Brennan is suggesting, nor can anyone seriously suggest that our politicized judiciary could resist the temptation to draw the lines themselves to fit their personal political preferences.

  • The efficiency gap test advocated by those challenging the Wisconsin districts is essentially a demand for political affirmative action, via proportional representation. It would require the creation of bizarre-shaped districts, to offset the natural geographic disadvantages of liberals, who tend to be tightly concentrated in cities.

    An efficiency gap is not caused primarily by partisan redistricting, but rather by liberal Democrats bunching themselves in urban areas, and making such areas uncongenial to moderates and conservatives, resulting in moderate and conservative voters moving to the outer suburbs (through left-wing policies such as subjecting people’s children to weird left-wing indoctrination in the schools, or increasing taxes to levels that cash-strapped parents with many children — mostly independents or Republicans — cannot afford. Or acts of ideological intolerance by members of mostly liberal enclaves, such as vandalizing the roses or holiday decorations of a conservative neighbor, yet again, after he once again published a conservative letter to the editor in the local paper).

    Efficency gaps are also present, often even more heavily than in Wisconsin, in redistricting done by courts or “non-partisan” commissions (for example, Kansas and Missouri, with non-partisan or court-ordered redistricting, had bigger efficiency gaps than Wisconsin). Wisconsin’s districts are not weird gerrymanders, and are compact and follow traditional districting principles that combine areas that share common interests.

    Getting rid of the efficiency gap would require, rather than eliminate, gerrymandering. The only way to get rid of the so-called efficiency gap that is endemic in legislative districting would be to draw weirdly shaped districts that stretch from cities to remote rural areas. Most such existing weird gerrymanders are due to the demand for race-based districts imposed by the Voting Rights Act and its demand for racial proportionality. Similar weird gerrymanders would be required by the Supreme Court adopting the Wisconsin challengers’ “efficiency gap” test for political “gerrymandering.” That test would mandate, rather than eliminate, gerrymandering.