Gill involves a particularly egregious case of gerrymandering. In 2010, a unified Republican government hired consultants to use sophisticated computer software in order to redraw districts in a way that would maximize Republican seats in the legislature, by concentrating likely Democratic votes and carefully diffusing Republican ones. The results were remarkable. In 2008, 29 districts in the state Assembly were within three points of the state’s presidential vote; in 2012, the first election after the gerrymander, there were only seven. And these changes produced the intended skew: Wisconsin Republicans got less than 49 percent of the vote—but won 60 of the seats in the state’s 99-member Assembly. Since then, Republicans have continued to parlay a nearly evenly split electorate into huge legislative majorities.
The potential constitutional issues with partisan gerrymandering should be obvious. An electoral map that awards 60 percent of the seats of a legislature to a party that got less than 50 percent of the vote in a two-party race is at complete odds with the essential holding of the great Warren Court decisions Baker v. Carr and Reynolds v. Sims. These decisions held that when states deliberately refused to redraw districts to reflect population shifts, with the inevitable result of effectively disenfranchising urban voters, they violated the equal protection clause of the Fourteenth Amendment. Reynolds held that in all elections, except those for the United States Senate (which is permanently malapportioned by the Constitution), legislative districts had to be drawn to reflect a “one person, one vote” standard. It is hard to see how districting that intentionally overrepresents one group of voters and underrepresents another can be constitutional under these precedents.
And yet, the Supreme Court has allowed partisan gerrymandering to get worse and worse over the years. In the 2004 case Vieth v. Jubelirer, the Supreme Court declined to rule a partisan gerrymander of the Pennsylvania legislature unconstitutional. Four justices—Antonin Scalia, William Rehnquist, Clarence Thomas, and Sandra Day O’Connor—held that partisan gerrymanders were inherently “non justiciable.” That is, even if partisan gerrymanders are unconstitutional, they are inherently a “political question” that cannot be resolved by the courts. According to Scalia’s plurality opinion, the appropriate remedy to a partisan gerrymander is the power given to Congress in Article 1, §4 to alter legislative districts, not judicial review.
But like the pre-Baker argument that all districting claims were nonjusticiable, this argument is transparently specious. For example, Democratic Congresses in the first half of the twentieth century had no incentive to alter malapportioned districts that favored state Democrats (and, therefore, also favored House incumbents because state legislatures draw congressional districts.) Petitioning a Republican Congress and President to remedy constitutional gerrymandering that favors Republicans in 2017 will be equally futile. This is precisely the kind of failure of ordinary democratic processes where judicial review is most defensible.
Despite the fact that Frankfurter’s assertions that the Supreme Court should not enter the POLITICAL THICKET of redistricting are some of the more specious in the history of the United States Reports (“the remedy available to disenfranchised voters is to petition their state representatives!”), they’re becoming Republican conventional wisdom. Indeed, their Evenwel concurrence suggests that Alito and Thomas believe Reynolds v. Sims was wrongly decided, and a Trumped-Up Court could very well severely curtail or outright overrule one-person-one-vote. And if Kennedy votes to uphold gerrymandering as extreme as Wisconsin’s, it will have been overruled de facto in any case.