On Dec. 12, 2000, the Supreme Court ended the recount of Florida’s votes in that year’s presidential election, effectively awarding 25 electoral votes to Republican George W. Bush and making him president.
The decision was 5 to 4, with the most conservative Republican-appointed justices in favor of Bush. Democrats condemned the ruling as nakedly partisan, saying it was based not on precedent but a cooked-to-order legal rationale: Recount rules didn’t treat all ballots the same way, thus violating the 14th Amendment guarantee of equal protection of the laws. Many critics saw Bush v. Gore as an indelible blot on the court’s legitimacy.
Seventeen-odd years later, Democrats are pressing a case whose essential premise is that the Supreme Court can and should be trusted to write a whole new category of rules affecting almost every state legislative and congressional election in the United States. Their legal argument rests on the equal protection clause, and their hopes rest on the very swing-voter justice who tipped the 2000 election case, Anthony M. Kennedy.
At issue is the bad habit that state legislature majorities, abetted by like-minded governors, have of skewing congressional and state legislative districts to their party’s advantage.
The specific appeal now before the Supreme Court involves a Democratic challenge to a state legislative district map that Wisconsin Republicans drafted in 2011. (Republicans, in a separate case still in the lower courts, are challenging similar computer-aided manipulations by Democrats in Maryland.)
No matter which party does it, partisan districting creates anomalies and unfairness, breeding public cynicism about a “rigged system.” Certainly in Wisconsin, the GOP acted out of blatantly self-serving motives. Excluding Democrats from the process, they considered several alternative maps before adopting one that maximized Republican opportunities. In 2012, the GOP won 60 percent of State Assembly seats with just 48.6 percent of votes cast.
Less clear is whether the federal judiciary — meaning, ultimately, the Supreme Court — is the right institution to fix this. To be sure, the justices long ago waded into the “political thicket,” as Justice Felix Frankfurter called it — with some necessary results. The Supreme Court decided districts had to be roughly equal in population, on the “one person, one vote,” principle; under the Voting Rights Act, the justices protect minority voters from racially biased districting.
In all those decades, though, the court has never held any alleged partisan excess unconstitutional, for a very good reason: the lack of a consistent, judicially manageable answer to the question “How partisan is too partisan?”
Opponents of the Wisconsin map think they’ve found an objective measurement of undue partisanship, the “efficiency gap,” or E.G., which, applied to the Badger State, shows Democratic votes are excessively “wasted” because Republicans “packed” Democrats in a minority of districts where their candidates are all but guaranteed victory.
Rendering Democratic votes less potent in this way violated the equal protection clause, Democrats argued. And two members of a three-judge federal court ruled in their favor, thus prompting the state’s appeal to the justices.
Yet statistics are notoriously open to interpretation. As the dissenting judge, William C. Griesbach, noted, some of Wisconsin’s high E.G. results from demographics, namely the concentration of Democrats in cities such as Milwaukee and Madison. Also, the GOP drew compact and contiguous districts, unlike the “salamander” that made old Elbridge Gerry famous. Can there be a partisan gerrymander with no gerrymandering?
In any case, the implication that the legislature’s composition should correspond to the party balance statewide smacks of a plea for proportional representation, which the Supreme Court has never supported.
For these and other reasons, even the two-judge majority hesitated to say that E.G. was anything more than a factor in its ruling — a tacit acknowledgment of the subject’s inherent indeterminacy that may impress Kennedy. In past cases, he conceded that there might be such a thing as unconstitutionally extreme partisan districting, but never actually identified an example.
If past is prologue, Kennedy will find a new way to keep his options open. Ideally, though, he and the other justices would rule once and for all that adjudicating partisanship is a mission impossible.
In its futility, it could prove corrupting. Supreme Court and, indeed, lower court confirmation processes are contentious enough. Do we really want presidents, and senators, vetting judicial nominees for their views on how best to parcel out state legislative and congressional seats between the parties?
To repeat: Partisan districting may fuel public cynicism about politics. Instead of setting up the Supreme Court as the ultimate arbiter of it, however, reformers should promote independent state-level commissions such as those in California and Arizona.
Divided government, too, may help limit excesses; if a legislature dominated by one party draws a grossly skewed map, a governor from the other party can veto it.
Some things may be just as dangerous to democracy as a redistricting process constantly embroiled in partisan politics. One of them would be a Supreme Court constantly embroiled in partisan politics.