A decision on gerrymandering: How the courts could change voting

Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington, DC. This is one of several gerrymandering cases coming to the Supreme Court. Photo by Olivier Douliery/Getty Images.

Q&A with Gerhard Casper, former Stanford president and former director of the Freeman Spogli Institute for International Studies. Written by Nicole Feldman.

Traditionally, American courts have had little to say about gerrymandering — drawing district lines in order to favor a party during elections. That is starting to change. In January, the case of the League of Women Voters v. Pennsylvania struck down the state’s electoral map as unconstitutionally partisan. After the state’s legislature and governor failed to agree on a new map, the Pennsylvania Supreme Court — advised by FSI affiliate and Stanford Law professor Nathaniel Persily — issued a redrawn map on February 19. The U.S. Supreme Court plans to hear similar cases from North Carolina, Wisconsin and Maryland that may create a precedent in federal court to strike down partisan gerrymandering.

As we watch these cases unfold, constitutional expert and former Stanford University President Gerhard Casper tells us how courts have dealt with gerrymandering in the past, how current cases like the one in Pennsylvania could change court decisions on partisan gerrymandering and how the U.S. could change the way it draws electoral districts to improve the system as a whole.

Do the courts have authority over who draws district lines?

Initially, the Supreme Court said it had no jurisdiction to pass on apportionment. Then in 1962, an incredibly important decision called Baker v. Carr (involving rotten boroughs in Tennessee) concluded that the issue of malapportioinment was justiciable. Two years later, in Reynolds v. Simms, the court held unequal size districts were a violation of the equal protection clause of the Fourteenth Amendment. The court said districts had to be more-or-less equal size in terms of population. They are reviewed every 10 years after the census. That has meant that opportunities were created for legislators to choose the voters, rather than the voters choosing the legislators.

How common is gerrymandering?

Gerrymandering, both by the Democratic Party and the Republican Party, has been very widespread. It comes in many forms. Some is partisan. Some is actually bipartisan; that is, the two parties get together and decide to make life pleasant for incumbents. But sometimes if there is a clear majority of one party or the other, that party will ruthlessly try to maximize its chances.

Opportunities were created for legislators to choose the voters, rather than the voters choosing the legislators.

Why? Aren’t there regulations in place to combat this?

There are state standards like contiguity, compactness, local government boundaries, a community of interest. These are all standards that legislatures supposedly follow in apportionment. One that is understandable, but often does not lead to equal size districts, is to try to follow local government boundaries. There is, however, no genuine consensus on what the standards should be and how they trade off.

How could the U.S. improve the way districts are drawn?

One of the amazing aspects of American democracy is that we leave this to the legislatures and the parties to determine. In most other developed democracies, apportionment is left to independent commissions that try to work it out in as neutral a fashion as possible. It’s rare to hear complaints about apportionment in Britain or in Germany. I think the legislature should get out of the business. California now has a commission. However, the state legislature has to decide to have the independent commission because the Constitution puts the legislatures in charge.

How will recent court cases like League of Women Voters v. Pennsylvania change things?

The Supreme Court has always taken the position that partisan gerrymandering is not in its power. The most recent example is a 2004 decision called Vieth v. Jubelirer. That decision was very interesting because of how the court split. Four justices said it was time to address this issue and find judicially manageable standards. Four justices said, “No, that’s impossible, and we stick to the old jurisprudence.” And Justice Kennedy said, “Well, not now but perhaps in the future.” That future is now at stake in the Wisconsin case, Gill v. Whitford, that is before the Supreme Court. There is also a Maryland congressional district case.

It is a dramatic and fairly exciting moment to see that the Supreme Court is apparently reconsidering.

The effect of the Pennsylvania situation is that the state supreme court decision stands — the U.S. Supreme Court has refused to issue an order that would preserve the status quo in Pennsylvania. And so, Pennsylvania now has to reapportion under the order of the Pennsylvania Supreme Court.

For somebody like myself who has followed these developments closely over the years — I think I first wrote about this in the ’60s — it is a dramatic and fairly exciting moment to see that the Supreme Court is apparently reconsidering. Of course, we don’t know whether the jurisprudence will change. We can assume there are four justices who will vote for reviewing partisan gerrymandering. Possibly Justice Kennedy will be with them. Justice Gorsuch is a new factor. So, I don’t take anything for granted.

What are the effects of the Pennsylvania case likely to be?

In the Pennsylvania case, the Republican legislature apparently engaged in gerrymandering. The governor of Pennsylvania is a Democrat, and so he has not approved the legislative plans. That means that the courts have to act. That is bound to have somewhat of a positive effect for the Democratic Party, but I cannot possibly imagine how much because in reapportionment more than any other area, the devil hides in the details.

Will the Pennsylvania case likely set a precedent for future gerrymandering cases?

It may very well. In the United States, the Constitution leaves voting rights basically to the states — though for more than 50 years, apportionment has seen federal court supervision and, until a Supreme Court decision in 2013, the Voting Rights Act of 1965 even required certain states to obtain federal approval before changing their election laws, a way to protect against racial discrimination. There may now be a new role for state courts.

How hard will it be to remove partisanship from the districts?

It will be very difficult to eliminate partisanship from the process. But we have such gross instances of partisanship that it may become a little milder. But I don’t think it will disappear.