When it became clear that democracy advocates had made a powerful case against partisan redistricting schemes that deny voters real choices—and that prevent the will of the people from defining the character of state legislatures and the Congress—the defenders of the indefensible retreated to the argument that giving power to the people could be… revolutionary.
“Plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics,” Misha Tseytlin, Wisconsin’s solicitor general, told justices of the Supreme Court on Tuesday, as they heard oral arguments regarding Gill v. Whitford, the most significant challenge to partisan gerrymandering in modern times.
Tseytlin and other defenders of an extreme gerrymandering scheme that was implemented by Wisconsin Governor Scott Walker’s Republican allies in 2011 begged the high court to reject the reasoning of a panel of federal judges who determined Wisconsin’s skewed legislative district lines are unconstitutional. But the legal arguments were so convoluted—and so obviously shaped by partisan enthusiasms rather than democratic principles—that they had a hard time of it. Justice Anthony Kennedy, the key swing vote on the high court, was so unsatisfied with answers from a lawyer representing Wisconsin’s Republican lawmakers to his questions about hyper-partisan maps that he scolded the obfuscating attorney: “I have to say that I don’t think you ever answered the question.”
If Kennedy sides with more liberal members of the court and tips the balance against gerrymandering, that would upset the calculations of some of the most economically and politically powerful players in the country. So the lawyers for the established order were scrambling to convince the court that a decision on the side of democracy would unleash legislative and legal chaos.
Tseytlin and his colleagues attempted the legal equivalent of climate-science denial. They griped about analyses that confirmed the unfairness of the Republican maps and warned against basing a rejection of those maps on data that had been provided to the court. That desperate measure earned a mild rebuke from the bench. “This is not kind of hypothetical, airy-fairy, we guess, and then we guess again,” Justice Elena Kagan said of the data. “I mean, this is pretty scientific by this point.”
Justice Sonia Sotomayor noted that “every single social science metric points in the same direction.” And she was correct. The metrics that so concern Tseytlin and others who attempt to defend gerrymandering simply indicate that, by warping district lines to give themselves overwhelming political advantages, Wisconsin Republicans have effectively denied voters fair elections and representative government. That’s not a particularly debatable point.