Gerrymandering Case Invites Court to Set New Standard

Political gerrymandering, the practice by which a controlling party draws election district lines primarily for the partisan purpose of enhancing its prospects in future elections, has been a subversive force in party politics since the beginning of our republic. It undercuts a foundational principle of our democracy: That we should be governed by those selected by the majority of voters. And, on Oct 3, in Gill v. Whitford, the issue will return to the Supreme Court for the first time in a decade. The justices often have been highly critical of extreme partisan gerrymanders, but the court has yet to identify a judicially discernible and manageable standard for determining when the process by which districts are drawn—an inherently political endeavor—crosses the line and is so partisan as to be unsustainable. For a variety of reasons, there is good reason to believe, and hope, that the court’s disposition in Whitford will change that.

First, the gerrymandering connected to the 2010 redistricting process has caused a historically high level of uncompetitive districts which, in turn, has substantially contributed to the dysfunction and polarization of our democracy. Last year, only 17 out of 435 races were decided by a margin of 5 percent or less, and another 33 seats by a margin of 10 percent or less. Put differently, more than 90 percent of House races were landslides—with an average margin of victory of 37.1 percent—where the results were a foregone conclusion. To be sure, representatives in uncompetitive districts face no real risk of losing a general election. That dynamic creates a strong disincentive to collaborate across the aisle because doing so increases the only serious threat to their incumbency—a primary challenge from the far right or far left. Conversely, it creates an equally strong incentive to move further to the left or right, whatever the case may be, in order to protect their flanks. That is a crucial, but underreported, source of contemporary gridlock and extremism, and it should inform the court’s approach to Whitford. This is not a Democratic or Republican issue. In the past, both parties have been equally guilty of manipulating district lines to gain a political advantage, and there are currently suits by both minority Democrats and minority Republicans challenging redistricting.