Supreme Court punts on partisan gerrymandering

The U.S. Supreme Court took a pass on setting limits on extreme partisan gerrymandering on Monday, saying the plaintiffs in the case didn’t have standing to challenge Wisconsin’s entire statewide assembly map.

The decision came in a case called Gill v. Whitford, which advocates had hoped would allow the court to clarify if partisan gerrymandering could be so egregious that it violated the U.S. Constitution. The court has never said partisan gerrymandering is unconstitutional, leaving lawmakers from both political parties free to draw lines to their advantage.

Redistricting is usually done once every 10 years, so an effective gerrymander can have profound political consequences for the rest of the decade. Many believe advances in technology and data analysis will make partisan gerrymandering during the next round of redistricting, in 2021, even more severe.

The case involved a challenge to Wisconsin’s state assembly map. Republicans controlled the redistricting process in Wisconsin and worked in secret to draw a map to cement GOP control over the chamber.

Their plan worked. In 2012, they won 60 of the chamber’s 99 seats, even though then-President Barack Obama had won the state and Republicans only got 47 percent of the vote. The GOP won 57 percent of the assembly vote in 2014 and increased its majority in the assembly to 63 seats. In 2016, the party’s share of the assembly vote dropped to 53 percent, but Republicans picked up an additional seat in the assembly.

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Signed in 2012, Obama’s executive order offering legal protections from deportation to children brought into the country by undocumented immigrant parents offered a legal respite for nearly 800,000 people. While it was not a permanent solution, many Republicans in Congress sided with Democrats in the view that children protected under the Deferred Action for Childhood Arrivals program should ultimately be granted U.S. citizenship. But on Sept. 5, 2017,  President Trump put that possibility in doubt. “Make no mistake, we are going to put the interest of AMERICAN CITIZENS FIRST!” Trump tweeted ahead of an announcement by his attorney general that he was rescinding Obama’s action. The matter now rests with Congress.

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In 2015, in the wake of what some viewed as the outsize police response to the unrest in Ferguson, Mo., Obama issued an order banning the sale of surplus military equipment such as grenade launchers and armored vehicles to local police forces. On Aug. 28, 2017, Attorney General Jeff Sessions announced that Trump was scrapping the restriction “to make it easier to protect yourselves and your communities.”

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Denouncing the Obama administration’s 2014 decision to normalize diplomatic relations with Cuba, President Trump announced on June 16, 2017, that he was putting travel and trade restrictions with the island nation back in place. “The previous administration’s easing of restrictions on travel and trade does not help the Cuban people — they only enrich the Cuban regime,” Trump said in a Florida speech.

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Trump has said he believes that climate change is a hoax perpetrated by the Chinese. His June 1, 2017, decision to walk away from the Paris climate agreement signed by his predecessor ultimately left the United States isolated as the only country in the world not onboard.

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Making good on the long-held Republican slogan “Drill, baby, drill,” Trump overturned a 2016 Obama executive order banning oil drilling in parts of the Atlantic Ocean and the Arctic.

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Obama’s rules that guaranteed equal access to the internet — aka net neutrality — were enshrined in 2015 with a vote from the Federal Communications Commission. But new FCC commissioners are appointed by whichever president is serving, and when Trump took office he installed new leadership, which voted on Dec. 14 to scrap the policy, opening up the internet to what critics fear will result in a tiered system of information and entertainment.

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On Feb. 28, 2017, President Trump began his assault on Obama’s executive order that expanded federal oversight of pollution in the nation’s rivers, streams and lakes. Trump’s first step was to order the EPA to “review and reconsider” the restrictions. Then, in June, the administration officially rolled back the environmental protections for over half of the nation’s tributaries.

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Keeping a campaign promise to the coal industry, Trump signed an executive order on March 28, 2017, intended to begin dismantling Obama’s Clean Power Plan, which required power plants to reduce carbon emissions. Trump’s new “Energy Independence” order also reversed a ban on coal leasing on federal lands and loosened restrictions on methane emissions. Several states immediately filed a lawsuit against the administration, claiming the move endangered the health of citizens.

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Applauded by industry and decried by environmentalists, Trump signed an executive order on April 26, 2017, that swept away Obama’s use of the 1906 Antiquities Act to protect federal lands from oil drilling, mining and other development. “Today we’re putting the states back in charge,” he said at the signing. In December, the administration announced it would reduce the size of the Obama-created Bears Ears National Monument by 85 percent, and the Bill Clinton-designated Grand Staircase-Escalante National Monument by 50 percent.

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One month into his term, Trump rescinded an Obama directive that allowed students to use school bathrooms that matched their self-identified gender. Trump’s rationale for the reversal was that states, rather than the federal government, should decide how to handle the question.

American Federation of Teachers President Randi Weingarten decried the move, telling the Associated Press that it “tells trans kids that it’s OK with the Trump administration and the Department of Education for them to be abused and harassed at school for being trans.”

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Wisconsin Republicans weren’t alone in gerrymandering. During the 2010 midterm elections, Republicans targeted state races in which they had a chance to flip control of state chambers and control the redistricting process. That effort succeeded and Republicans ruthlessly gerrymandered seats to their advantage. In North Carolina, the Republican lawmakers overseeing the redistricting process talked openly about how much of an advantage their map would give Republicans. Challenges to the North Carolina congressional map, as well as the Maryland map, which is gerrymandered to favor Democrats, are also pending before the court.

The challengers in the Wisconsin case, 12 voters in the state, said the state assembly map was a partisan gerrymander that treated Democrats and Republicans differently, thus violating their rights guaranteed by the First and 14th amendments. They said the election results over three federal elections offered clear evidence that Republicans had drawn a map making it nearly impossible to take control of the chamber.

But Wisconsin lawyers said lawmakers hadn’t done anything unconstitutional by drawing maps to their advantage. They noted that the Constitution gives state lawmakers power over redistricting, a sign that the drafters of the document anticipated partisanship to play a role in the process.

They also pointed to a 2004 case called Vieth v. Jubelirer, in which the Supreme Court declined to strike down Pennsylvania’s congressional map as an unconstitutional gerrymander. Four justices in the majority wrote that it was impossible to determine when a partisan gerrymander violated the Constitution. Justice Anthony Kennedy, however, wrote separately, saying that such a standard might exist.

The challengers in Gill took up Kennedy’s invitation. They offered a range of standards they hoped he might like in hopes of earning his vote, which was seen as crucial in winning the case.

Many of those proposed tests relied on mathematical calculations to help the justices assess how firmly a map cemented one party’s power. One of the tests that got much attention in the case was called the “efficiency gap.” It offers a formula for calculating how many votes each party wastes in a given election in an attempt to quantify the severeness of a gerrymander. The party in power is extremely likely to maintain its majority when the efficiency gap is greater than 7 percent, experts say.

During oral argument in October, Chief Justice John Roberts was skeptical of the efficiency gap and other standards, labeling them “sociological gobbledygook.” He worried that getting involved in partisan gerrymandering would worsen the court’s standing in the public’s eye because the average American would think the justices were favoring one party over the other.

The standards the challengers were offering “doesn’t sound like language in the Constitution,” Roberts said. 

  • This article originally appeared on HuffPost.
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