The Most Serious Challenge to Gerrymandering in Modern Times Reaches the Supreme Court

The Most Serious Challenge to Gerrymandering in Modern Times Reaches the Supreme Court

The Most Serious Challenge to Gerrymandering in Modern Times Reaches the Supreme Court

A Wisconsin case could break the grip of partisans on the process that defines whether elections are competitive.


The American Civil Liberties Union is flexing the organizing and campaigning muscles it has developed since Donald Trump assumed the presidency to address the structural challenges that undermined American democracy before the 2016 presidential election.

The ACLU’s ambitious “Let People Vote” project will work in states across the country to strengthen democracy by extending early-voting periods, making voter registration more accessible, restoring voting rights for disenfranchised communities, and combating “attempts at voter suppression, such as discriminatory voter ID requirements and voter purges.”

Those vital initiatives will make it easier to vote. But the ACLU is not stopping there. It is also seeking reforms that will make voting more meaningful by restoring competition to legislative and congressional elections.

“One way politicians have been able to reshape the electorate to their liking is through the redistricting process,” explains the ACLU’s Brian Tashman. “Gerrymandering is done to protect incumbent lawmakers, especially when they are members of the party in power. This practice creates legislative districts that are so uncompetitive that it discourages voter participation.”

The focus on gerrymandering is essential, and the Supreme Court will take up the issue Tuesday, hearing oral argument on a Wisconsin case that could ultimately transform elections nationwide. The legal scholars and voting-rights activists who brought the case, now dubbed Gill v. Whitford, have asserted that Wisconsin’s state Assembly and state Senate district maps were rigged by Governor Scott Walker’s hyper-partisan legislative allies to lock in the majorities they gained in the wave election of 2010. Republicans gerrymandered legislative district lines so aggressively that in the next election, even as Wisconsin Democrats won 174,000 more votes than Republicans in races for state Assembly seats, Republicans won a 60-39 majority in the chamber.

The democratic disconnect illustrated by those numbers has strengthened the argument that the gerrymandering of district lines denies voters their right to participate in fair and competitive elections. And jurists have begun to accept that something must be done to make elections more reflective of the popular will. As the lead plaintiff in the Wisconsin case, longtime University of Wisconsin law professor William Whitford, says: “In a democracy citizens are supposed to choose their legislators. In Wisconsin, legislators have chosen their voters.”

Last year, a three-judge federal-court panel declared that the Republican maps were unconstitutional because they violated the Equal Protection Clause and freedom-of-association rights that extend from the First Amendment. For the first time in more than three decades, a federal court had invalidated legislative district lines because of partisan bias. Whitford has described the panel’s decisions in the case as “truly historic,” and said they “could have a monumental impact in ensuring that voters’ voices are heard across the nation, regardless of party.”

Change this monumental will not come without a fight. Governor Walker’s allies—a Republican-state attorney general and Republican legislative leaders—moved immediately to challenge the determination of the federal judges that the maps had “secured for Republicans a lasting Assembly majority…by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50 percent.”

Now the Wisconsin case comes before the US Supreme Court and, despite that court’s conservative bias in recent years on voting-rights matters, Whitford and others are hopeful for its prospects. Why? Because Justice Anthony Kennedy, the key swing vote on the high court, has in the past stated that “If courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow.” If Kennedy sides with more liberal members of the court, a blow could be struck against gerrymandering—not just in Wisconsin but, via the respect-for-democracy standard that could be set, nationally.

“We want to see fair maps and an honest political system, and if our win is upheld, we will see positive change across the country,” says Mary Lynne Donohue, a plaintiff in the Wisconsin case, which has been highlighted and supported by the Fair Elections Project, Common Cause in Wisconsin, the Wisconsin Democracy Campaign, Citizen Action of Wisconsin, the League of Women Voters of Wisconsin, Organizing for America, Grassroots Northshore, and the Wisconsin branch of the American Civil Liberties Union.

The prospect that Whitford and Donahue could be right is not just encouraging at a point when American democracy is embattled. It is essential. The protection and extension of voting rights must always be the first priority. But if those voting rights are to have meaning, the elections in which votes are cast must be truly fair and genuinely competitive.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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