National Review - October 30, 2017

20 | http://www.nationalreview.com OCTOBER 30 , 2017

D

EMOCRATSknow that they have

a problem. As our country has

become more politically polar-

ized, we have increasingly

sorted ourselves geographically. As

Michael Barone has noted, “Democratic

voting groups—blacks, Hispanics (in

many states), and gentry liberals—tend

to be clustered in most central cities,

many sympathetic suburbs, and most

university towns, while Republican

voters are spread more evenly around

the rest of the country.” We see this

after every election cycle in maps

depicting outcomes by county that show

America as a sea of red with islands of

blue. Although Hillary Clinton won the

popular vote for president, she carried

only 487 of America’s approximately

3,100 counties.

Given that we elect the U.S. House of

Representatives and state legislatures in

single-member, winner-take-all districts,

the geographic concentration of Demo -

cratic votes gives Republicans a natural

advantage in legislative races. After the

elections in November 2016, the GOP

controlled 67 of the nation’s 98 partisan

legislative chambers. In the face of this

handicap, Democrats have turned to the

courts, arguing that Republican success

is the result of—or at least enhanced

by—partisan gerrymandering.

Historically, suits seeking to over-

turn legislative maps because they

favor Democrats or Republicans have

been a nonstarter. From the moment it

first adopted a constitutional require-

ment of “one person, one vote,” in

1964’s Reynolds v. Sims, the Supreme

Court has emphasized that “legislative

reapportionment is primarily a matter

for legislative consideration and deter-

mination.” The redistricting process

requires weighing a variety of widely

accepted objectives—contiguity, com-

pactness, continuity, respect for political

boundaries, keeping intact communities

of similarly situated voters (such as rural

voters), protecting the ability of minority

voters to elect candidates of their choice,

and even political compromise and the

protection of incumbents—that often

work at cross-purposes and produce

maps that are the product of no identifi-

able set of principles.

Although constitutional objections

to partisan gerrymandering remain

theoretically possible, the Supreme

Court has been unable to articulate a

way to determine how much partisan-

ship is too much. In 2004, in Vieth v.

Jubelirer, four justices noted that

redistricting litigation had created

“one long record of puzzlement and

consternation.” Justice Scalia, joined

by Chief Justice Rehnquist and Justices

Thomas and O’Connor, was prepared

to declare that gerrymandering claims

were political questions incapable of

being adjudicated by the Court. The

four rejected the plaintiffs’ appeal and

declined to intervene in the redistricting

plan (which was in Pennsylvania). In a

concurring opinion, Justice Anthony

Kennedy agreed that no standard for

adjudicating gerrymandering claims had

yet been identified, but he was unwilling

to foreclose the possibility that someday

the courts would find one.

Last year, a group of Democrats in

Wisconsin convinced a divided three-

judge panel that they had finally located

the grail that has eluded detection for the

better part of half a century. In Gill v.

Whitford, the district-court majority

conceded that maps drawn by a GOP

majority in the Wisconsin legislature

respect traditional redistricting criteria.

They are contiguous and compact. They

do not resemble a salamander, ink blot,

or sacred Mayan bird. But the court

nevertheless held that they constituted a

partisan gerrymander that unconstitu-

tionally favored Republicans.

The standard that supposedly solves

the puzzle that has stumped the courts

for so long turns on something called the

“efficiency gap.” Calculation of the gap

begins with the assumption that all votes

cast for a losing candidate, along with any

votes cast for a winning candidate that

exceed the number of votes necessary for

The Judges

And the

Gerrymander

Courts should not enter a partisan debate

BY RICHARD ESENBERG

Mr. Esenberg is the president and general counsel of

the Wisconsin Institute for Law & Liberty, which

filed an amicus brief in support of the State of

Wisconsin in Gill v. Whitford.

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