When the Supreme Court hears arguments today in Gill v. Whitford, contesting Wisconsin’s legislative map, it will have a chance to rein in an aggressive new breed of data-driven gerrymandering that divides communities and diminishes the voice of many Americans. The record is clear, and the Supreme Court must take this opportunity to protect the right to fair representation that is embedded in our Constitution and our values.
I’ve spent a lot of time with maps since finishing my term as attorney general and dedicating my time to a push for a fair redrawing of legislative districts. These maps — created as a result of some Republicans’ bad faith redistricting efforts after the 2010 Census — are impressive in their geographic creativity but destructive to the representative democracy that our founders envisioned. Republicans created a House seat in Ohio that is only contiguous at low-tide; a House seat in Virginia that can only be connected by a boat ride on the James River; and a House seat in Michigan that is shaped like a snake and designed to pack as many minority voters into one district as possible.
Many Republicans across the country have wielded the gerrymander to manipulate the people’s right to vote into unconscionable partisan advantage. In 2012, Democrats won 1.5 million more votes than Republicans in races for the House of Representatives, yet Republicans gained a 234 to 201 seat advantage. In 2016, despite winning fewer than half of all votes for the House, Republicans still held an advantage of 241 to 194 House seats. A recent report from the Brennan Center for Justice found that partisan gerrymandering has created a “durable majority” of 16-17 seats for Republicans in the U.S. House of Representatives. Just seven states, where the maps were drawn and approved solely by Republicans, account for almost all of this bias.
By one analysis, the Wisconsin State Assembly constitutes “the largest partisan asymmetry on record.” Republicans there drew maps in secret, keeping both the affected public and most of the members of their own legislature in the dark. The results were distorted, but predictable. In 2012, Republican candidates for the Wisconsin State Assembly won less than half the vote but received 60 of the Assembly’s 99 seats.
In the past few years, courts have repeatedly struck down maps that diminish the voices of Americans based on race. Courts have already overturned maps in North Carolina, Virginia, Florida and Texas for unlawful racial gerrymandering. In May, the U.S. Supreme Court struck down North Carolina’s former congressional maps as unconstitutional racial gerrymanders. In June, the Supreme Court held that the North Carolina state legislative maps were unconstitutional for the same reason.
Courts traditionally have been more reluctant to intervene in partisan gerrymandering cases, citing a concern about the intrusion of law into politics. But some Republican legislatures and governors have stretched the practice of gerrymandering into unprecedented territory. They have systematically used new technology and software with pinpoint precision to carve up districts. As Sam Wang and Brian Remlinger from the Princeton Gerrymandering Project recently wrote, “Thanks to technology and political polarization, the effects of partisan gerrymandering since 2012 have been more pronounced than at any point in the previous 50 years.”
The primary goal of redistricting should be to provide fair representation to citizens, adjusting maps in response to population shifts. But since 2011, some Republicans’ sole goal in redistricting has been to provide themselves the greatest possible political advantage.
The last time the Supreme Court rendered a decision on purely partisan gerrymandering, Justice Anthony Kennedy left the door open for the courts to provide relief should new circumstances arise. In his opinion, he contemplated potential challenges to partisan gerrymandering based on the Fourteenth Amendment’s “one person, one vote” guarantee and the First Amendment’s protection against “penalizing citizens” because of their political affiliation or voting history. And he explained that an unlawful partisan gerrymander could be found if voters were sorted based on their political affiliation “in an invidious manner or in a way unrelated to any legitimate legislative objective.”
In oral arguments today, it will be impossible for the Wisconsin legislature to show that its actions — like those of numerous state legislatures across the country — were motivated by anything other than providing Republicans with an iron grip on the State Assembly or that Democratic voters have not been penalized based on their party affiliation.
But while federal and state courts have a role to play in leveling the playing field, we cannot rely on the judicial system alone.
The National Democratic Redistricting Committee that I chair was created to oppose unfair Republican redistricting tactics and to ensure that voters will be able to choose their representatives rather than politicians choosing their voters. If we are successful before and after the 2020 Census and during the next redistricting cycle, elections will be decided on the basis of political philosophies and platforms — not the ability to draw maps.
If there are legal cases to be made, we will file lawsuits. But we will also focus our efforts on the more than three-dozen gubernatorial elections and hundreds of legislative races that will determine whether Republican politicians will be able to rig the maps again, following the Census in 2020. And we will support ballot initiatives in states that reform the redistricting process to create mechanisms that ensure fairly drawn voting districts.
This fight for fair representation is profoundly important to preserving our democracy and making our government accountable to the people. By drawing districts that create a greater fear of a primary challenge than a Democratic opponent, Republicans have turned into a party that caters to its most extreme component. That helps explain why the congressional majority has pushed to roll back the Affordable Care Act, even though only between 16 and 33 percent of Americans supported their various repeal efforts this year. When it comes to matters on which there is broad agreement among the American people that action must be taken — like criminal justice reform and protecting voting rights, increasing access to affordable health care, creating an economic system that benefits workers, or taking steps to address climate change and protecting the environment — the majority in Congress has come disconnected from the people they are supposed to represent.
This broken system must be fixed.
I was only 14 years old when President Lyndon Johnson signed the Voting Rights Act in 1965, but throughout my life I’ve carried with me the words he spoke that day: “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies.”
There is a long road ahead to end the practice of extreme partisan gerrymandering. Gill v. Whitford and other cases in the judicial system have the potential to block these undemocratic maps. But regardless of the court’s ruling, I have no doubt some Republicans will fight to preserve the damaging status quo. If more Americans embrace this challenge, we can restore faith in our political system. We can have a Congress and state legislatures that better reflect the diversity and compassion of the American people. And we can renew our commitment to the promise that voting must give people control over their own destinies.