Partisan gerrymandering: a problem with an assumed solution

This is the second in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here.

I'll stipulate it. Partisan gerrymandering is a problem. And it has long been a problem. From the early days of the Republic to the present, it has vexed the political process.

But if that is a problem, the question is, what should the solution look like? Or, more specifically, who should fashion the solution?

Even if partisan gerrymandering is a problem, a solution that turns on the federal judiciary assumes that it is best suited, or suited equally with the political branches, to address the problem. There has been no meaningful argument that the federal courts are to be a last resort (a weaker version of the justiciability claim) or that they lack the institutional competence to handle these matters (the basic argument concerning the "political question doctrine").

Indeed, even in Baker v. Carr, the Court went out of its way to point out the (practical) political futility of trying to change redistricting by the political process, emphasizing that the people of Tennessee lacked the initiative power to amend the state Constitution to address concerns about malapportionment in the state legislature. (Of course, I should note, the people of Wisconsin also lack that power!)

It will inevitably stifle any innovation at the state level. Florida, California, and Arizona are just a few of the states that have initiated efforts to change how redistricting occurs in each state. (Arizona's even survived a legal challenge, albeit, I think, dubiously.) Florida added a constitutional amendment with fairly specific provisions that invited state judicial involvement; California created a citizens redistricting commission to draw the lines; Arizona developed a bipartisan redistricting commission. Whether these are the right solutions (as each is different) is probably a question of perspective.

But, I think, political, state-based efforts like these will be overwhelmed by litigation in the federal courts in the event the Supreme Court articulates a constitutional standard and finds that Wisconsin's redistricting runs afoul of it. True, some states (or, probably more specifically, their voters!) might want to go above and beyond this standard. But I do think that political innovation will dry up fairly quickly.

State law in Wisconsin already provides some modest protection against gerrymandering. The Wisconsin Constitution requires that state legislative districts be "contiguous territory and be in as compact form as practicable," and that "no assembly district shall be divided in the formation of a senate district." These help prevent--but by no means end!--some manipulation in redistricting.

And the governor--from a statewide elected office--is still involved in redistricting. To the extent the legislature has entrenched itself, a statewide, non-districted office remains a part of the process.

All this is to say that a three-judge federal court stepping into a traditional political area, and longstanding state practice, is the assumed solution in this case, and it is not immediately obvious that ought to be so. When courts articulate a standard, or apply their own judgment to a case, it simply looks different than political or state law-based redistricting. It is by no means obvious to me that the flaws of a few federal judges (and the litigation that surrounds such cases) are going to be somehow better for our democracy than the messy, sticky politics we've slogged through for a couple of centuries.

Some, of course, have pointed to the fact that only in cases of extreme partisan gerrymandering should courts intervene, or that this era is unique in partisan gerrymandering (to be fair, a claim made in the 1980s and 2000s in the last go-arounds, too). But to invite federal courts to weigh in on the state legislative redistricting process is, I think, significant to a degree not sufficiently recognized (in my own view!) in the discussions surrounding partisan gerrymandering so far. That is, even if gerrymandering is a problem, assuming that the federal courts are the best (and, indeed, they will become the prime place if the appellees succeed in Gill v. Whitford), or the necessary, place for such a solution is, I think, a logical step that requires something more.