'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.