• Daniel Ethan Finneran

Supreme Court In Season

October 2017

Are you at all fatigued by the triteness of the autumn’s themes? If you’ve lately stepped outside your door to feel on your skin the changing of the air, you’ve doubtless seen the images that will consume every moment from Columbus Day till Thanksgiving Day. Surely, you’ve more than once in the past twenty-four hours passed the perennial specter of a store, Spirit Halloween—which seems, like an itinerant ghost, to come and go in a blink. You’ve doubtless felt the gentle urge to excuse yourself from sucking down another maple-iced pastry. You’ve been forced to exercise the temperance in this tenth month to refuse another sip of the pumpkin-spiced bliss found in every drink?

More stimulating to the mind, though admittedly less so to the taste, is the Supreme Court. In the rush of all things seasonal, the Supreme Court isn’t being left behind. On the contrary, it’s taking on an extraordinarily important place. One of the Court’s first and potentially most divisive cases of this year combines aspects both autumnal and amphibious—political and relevant. The case is Gill v. Whitford, and herein arises the season’s theme.

The “gill” part nearly explains itself; far from just being the plaintiff’s name, it’s the respiratory organ through which the water-dweller breathes life. Continuing our theme, the defense’s moniker, Whitford requires some imagination. It can be cleaved exactly four letters left to right to form the word “ford”, which is of course a small, passable stream (Oxford was understandably named with this in mind—as a “ford” over which oxen might readily pass). The third word completing the court case’s quasi-aquatic theme is a new one: “gerrymander”. The early nineteenth-century portmanteau, to which Massachusetts’s governor Elbridge Gerry lent his name, is the slippery connection that ties together our aquatic themes and this case.

“Gerrymander”, rather a verb than a pronoun in the modern day, creatively combines in one memorable neologism Elbridge’s surname and the word “salamander”. You see, back in the year 1812—after Britain’s first began arrogating American ships and impressing her sailors, but before the monarchy burned D.C.—Governor Gerry (whose name was pronounced with a hard “g”, as in “Gatling gun”) signed a bill that allowed his state’s districts to be drawn anew. His decision was the source of unmitigated resentment not only in Massachusetts, but throughout New England at-large. Those who were passionately opposed to what came to be called “gerrymandering” voiced their displeasure in the press. Most memorable was a drawing, often but perhaps apocryphally attributed to Nathan Hale, depicting a winged salamander. The beast took the cartoonish form of Massachusetts’s newfangled political landscape under Gerry’s direction.

The backlash wasn’t entirely deserved. Although many thought the bill was passed with objectionably partisan motives, it’s not entirely clear this was the case. Gerry, for his part, was staunchly opposed to factional political parties. Such parties were anathema to his American ideal, in much the same way they troubled George Washington a decade before (Washington expounded at length his concern about mutual hostilities in our political parties. The general proved prescient; he warned in his “Farewell Address” that perfervid factions and parties would become the “potent engines by which unprincipled men subvert the power of the people and usurp for themselves the reins of government”).

I can be said that there existed no party to which Washington overtly adhered. This was much to his benefit, and probably a further reason—if another was needed—why he’s still so universally loved. And while one could claim, at least nominally, that he had Federalist sympathies (in common with those of his famous aide-de-camp Hamilton), Gerry’s political positions were less well obfuscated. He was a staunch Democratic-Republican of the Jeffersonian build.

That said, Gerry wasn’t some partisan hack—so familiar to us today. He at the very least attempted to keep up an apolitical appearance for the good of the nation writ-large. Putting party behind country, he was an integral revolutionary when the British attacked our shores (or their shores, if the case we’re being honest). Later, after the Revolution, he refused to sign the Constitution without first ensuring that its vital appendage would be added—the Bill of Rights. Gerry then went on to serve as that document’s principle author, James Madison, as the Virginian’s vice president.

It’s simply another of history’s ironies, of which there are many and we’re helpless to resist, that Gerry’s name became entrenched with partisanship. This didn’t define the man, but modernity has made sure forever of the association. No more has this been made clear than in the Supreme Court case this past week. As mentioned in passing, the crux of the issue being argued in Gill v. Whitford is that of political gerrymandering.

However, the question of gerrymandering’s legality is not at hand. Its use surely has sown dissent through the years, but it’s never been rejected on constitutional grounds. For centuries, in fact, it has been a vital instrument most states have used—be they Republican or Democratic. The thinking goes, and has gone since Elbridge’s time, that if you want to change a district’s make-up and consequently its voter turn-out, you must vote into office representatives who will do so to your liking.

A gerrymandered district appears to give a political advantage to those who oversee its construction. And those who construct it, generally speaking, represent the majority party in the state. Every ten years, at the time of a state’s census, this party is tasked with re-drawing the local voting districts. While one would think this to be little more than cartographic child’s play, the drawings are much more complex than one might expect. The lines, such as they’re drawn, tend to be irregular and desultory. They’re unequal in length, circuitous in direction, and ad hoc in appearance. It’s the very image of cubism meeting modern democratic liberalism.

Those who find themselves on the outside looking in at this team of political Picassos will be disgruntled, and understandably so. A foresightful majority with state and red pen in hand can go ahead and re-configure the voting district maps in such ways that they’ll keep their political opponents at bay for years. They’ll advantage themselves at their opponent’s cost. Over time, it can become a self-perpetuating cycle. A party would need only draw ever-more advantageous districts every few years. This can be achieved simply by manipulating the maps.

Whether one regards gerrymandering as an insidious affront to democracy or a legally effective political strategy depends entirely on when and to whom you pose the question. Historically and recently, both the Democratic and Republican parties have benefitted from this process. Gill v. Whitford is just the latest of many instances, some of which have been adjudicated in the highest courts and others that have not.

Gill calls into question Wisconsin’s Republican leaders, who after gaining power in 2010, created the districting map now at the center of the attention. It must be noted that in nearby Illinois, a state reliably blue rather than red thanks to places like Urbana-Champaign and Chicago, a similar situation took place a few years prior. When it did, local courts determined that the mapmaking process wasn’t completely apolitical, but it also wasn’t exploitative and therefore illegal.

To understand Gill fully, one must briefly venture back to that time of 2010. It was then that Scott Walker won Wisconsin’s governorship and his Republican Party took control of the state’s assembly and senate. In accordance with the legislature’s constitutionally-endowed right, the bicameral body began the process of re-districting the state. The trouble arose not with the fact that they did this at all—after all, it was their prerogative—but rather by the way in which they went about it.

Walker and his government’s construction of the map immediately incited confrontation; Democrats fervently impugned the methods that Walker and the Republicans were using. It turns out, an outside consultant was brought to Madison, and with him a computer modelling system to help craft an insuperably conservative map. The program was able to input and observe in real-time the effects of different iterations of potential maps. Every new possible iteration provided a nearly clairvoyant look for Republicans of what lines needed be drawn to ensure their stronghold continued in the state. The highly technical models combined historical voting trends with regression analyses to predict how the party would fare in future elections. The predictive models it displayed showed how one might partition a map so that victory would be attainable with the fewest number of votes possible.

If ever you’ve been drawn to the idea of a society governed by technocracy rather than democracy, it might begin like this. Settling on a computer model that best fit the party’s plan, Wisconsin Republicans were then able to establish a map for the decade to come.

Democrats were distraught. More so, they were angry. To them, and not without good reason, it seemed that the Republicans had used a subversive and totally un-democratic political ploy to insure right-wing victories continued in perpetuity. They saw in this new map a deliberate and noxious restraint on their party’s future prospects in the state. Credence was given to this suspicion when in 2012, a district Obama had easily won in 2008 by 20% was lost four years later. Mitt Romney won that same district by an 8% margin. This flip alone didn’t prove gerrymandering was the cause, but it did raise eyebrows and concerns that maybe something foul was at play. Democrats contended that Republicans split the one influential Democratic district into two, smaller Republican subsets and got the electoral result (the choice of Romney over Obama) for which they had hoped.

In gerrymandering parlance, this can be achieved in one of two ways: the first is what is referred to as “cracking” the map. By “cracking” a district, one essentially disperses voters and dilutes their power at the polls. The second method is called, “packing”. When one “packs” a district, one attempts to concentrate voters into an otherwise small area where their preferred candidate usually wins. In this way, said candidate achieves a provincial win, but is fated to lose where it matters on a larger scale. After districts have been “cracked” and “packed”, you’re left with what are called “wasted votes”. Far from superfluous, these wasted votes are essential if gerrymandering is successfully to occur.

Ultimately, twelve Democrats rallied around their shared suspicion to bring the issue before Wisconsin’s supreme court. There, in a case that was decided 2-1, the Republican legislators’ manipulative mapmaking was deemed unconstitutional. Perforce, a precedent was hence set. The Democrats had won the battle, but as in all matters of the judiciary, the score is never finally settled nor the war completely won.

Six years later, dissatisfied with their state’s decision, Wisconsin’s Republicans are now appealing to the Supreme Court. They’re assuming the unfamiliar posture of a plaintiff and, seeking a reversal, are attempting to persuade the Supreme Court to favor their will. Conceivably, they may find this a fruitful task; in 2004, the Supreme Court heard another gerrymandering case called, Vieth v. Jubelirer. The Vieth case reflects Gill in many ways. Chiefly, Vieth concerned a Republican congress, this time in Pennsylvania, who drew its own politically advantageous district maps in 2000. Democrats filed suit, and the state supreme court ruled in the Democrats’ favor. It thus proceeded to what was then the Rehnquist Supreme Court.

As it was now, as it is today, it reached the Supreme Court in a bog of contention. Without a majority opinion, the late Justice Antonin Scalia opined that the case was nonjusticiable, and therefore inappropriate as a case on which the Court might decide. He and his four compatriots saw the case as lacking a judicial solution—an uncommon word from a Court known for its ambition and reach. Political gerrymandering consequently was to be left to the nation’s legislators to hash out.

In what could prove to be an integral consideration as Gill is debated today, Justice Anthony Kennedy wrote a foreshadowing concurring opinion. He cast his vote alongside Scalia’s, but he wasn’t coy about expressing his reservations. Kennedy explained that he was uncomfortable with political gerrymandering as the status quo, and that if there were a better way of measuring the practice’s effect on individuals and elections, his Vieth decision might be amenable to change.

This leads us nicely to the case as it stands today. The main questions at present are as follows: did Wisconsin’s map deliberately discriminate against a party (specifically, the Democrats)? The mapmakers—did they intend to stifle one population’s representation in favor of another? Finally, is it possible to measure empirically political gerrymandering without bias?

The first two questions are difficult to refute or prove. The third promises to be best answered if one applies the newfound “efficiency gap” equation developed by University of Chicago law professor Nicholas Stephanopoulos and research fellow Eric McGhee at the Public Policy Institute of California. The clever, though ambiguously-named equation seeks empirically to show gerrymandering’s effect on political parity in voting districts. During the case’s opening arguments, this equation was cited often to prove the Republican’s supposed attempt to gerrymander the state with political malice aforethought.

As he was in 2004, Kennedy is likely to serve as the fulcrum in this case. Amongst an intransigent and predictable Court, he is the only justice whose decision isn’t already pre-ordained. Where he pivots, so too will Gill. He must decide if Wisconsin’s lower court created a justifiable constitutional standard for determining whether or not a gerrymandered district is illicit. If he thinks Wisconsin succeeded in formulating this constitutional test, political gerrymandering will henceforth be prohibited. If this comes to pass, Congress will be tasked with enacting prohibitory laws and regulating potentially partisan outcomes. The states they represent could lose an important component of their provincial power.

The question one must ask, is whether or not gerrymandering is deleterious to our democracy. It’s a difficult question, but one we must strive to answer. There will be times when one’s party benefits from gerrymandering, and others when it will not. From our lips to our legislator’s ears, we the people must decide if the boons are worth the costs.

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