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Plaintiffs Look Forward to Reworking Wisconsin Gerrymander Case

23 June 2018, 01:07 | Tara Lloyd

Plaintiffs Look Forward to Reworking Wisconsin Gerrymander Case

Plaintiffs Look Forward to Reworking Wisconsin Gerrymander Case

That's frustrating for William Whitford, a Democrat and the lead plaintiff in the lawsuit.

Instead, they moved hundreds of thousands of voters out of the district, and approximately the same number back in, but in a way that gave Democrats an advantage.

Nicholas Stephanopoulos, a professor at the University of Chicago who devised the mathematical formula that was used in the Wisconsin law, called the court's decision to remand to lower courts "a silly hoop", but one "that we are really capable of jumping through". "But our cases to date have not found that this presents an individual and personal injury of the kind required" by the Constitution. Roberts makes this point repeatedly, pointing to the fact that none of the plaintiffs in the case could prove they were directly harmed by the redistricting plan, and choosing to argue instead that they were harmed by how the redistricting plan affected the electoral chances of Wisconsin Democrats in general. In doing so, they also hadn't shown how this would potentially harm the district indefinitely, as the Supreme Court's decision in this case would not affect any elections this coming fall.

"This Court has explicitly recognized the relevance of such statewide evidence in addressing racial gerrymandering claims of a district-specific nature", Kagan wrote in reference to the court's decision in Alabama Legislative Black Caucus v. Alabama (2015).

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The method at issue in the Wisconsin case was "packing and cracking", by which voters of one party are consolidated ("packed") into districts where they can prevail by a great majority but effectively waste votes, and are divided ("cracked") among multiple districts so they fail to gain a majority in any of those districts.

"In considering the balance of equities among the parties, we think that plaintiffs' unnecessary, yearslong delay in asking for preliminary injunctive relief weighed against their request", the opinion said.

The Maryland lawsuit offered the court a more limited approach to dealing with the issue because it involves just one district that flipped from Republican to Democratic control after the 2011 round of redistricting.

Dale Ho, who heads the ACLU's Voting Rights Project, said the court missed an opportunity "to lay down a firm marker as to when partisan gerrymandering is so extreme that it violates the constitutional rights of voters", though it permitted lawsuits against unfair maps to continue. Non-partisan redistricting not only takes the politics out of the map-drawing process, it does far more than our current system to ensure open, fair and competitive elections.

In other words, the U.S. Supreme Court said the plaintiffs' had a "generalized grievance" in arguing that the Republican-drawn maps created an unconstitutional gerrymander on a statewide basis. In the election that followed their remap, Republicans won 60 seats in Wisconsin's 99-seat assembly despite winning just 48.6 percent of the statewide vote. In legal briefs, the plaintiffs charged that Democratic state officials diluted the votes of Bartlett's constituents "because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine". Some legislatures are split between Republicans and Democrats, forcing compromise.

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The Court has been thinking and writing about the partisan gerrymandering question for 45 years but has never come up with the formula for judging when it would be unconstitutional.

Partisan gerrymandering has become a hot button issue in recent years as state legislatures have concerted efforts to draw electoral maps for political advantage with aid of technology that enables line drawing to be done in more precise ways. A key part of the test, known as the efficiency gap, was the product of social scientists' research.

Sure, the court might change their fate with a single ruling. To make a strong enough case that the gerrymandered map has entrenched one party in power, challengers often wait for the results from a few election cycles.

U.S. Supreme Court Justice Anthony Kennedy appeared to hold the decisive vote.

Advocates working to put an end to partisan gerrymandering don't agree. This organization is responsible for determining the boundaries of the districts, and it consists of 5 Democrats, 5 Republicans, and 4 commissioners from neither major party. The court dismissed a challenge to the new maps last October. "The same should be true for partisan gerrymandering". The justices are wary of setting a permanent rule for redistricting if voters can be impermanent in how they vote. State Senate: 35 Republicans, 15 Democrats.

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