Wisconsin gerrymander gets Supreme Court review it deserves

Gerrymandering has been a standard tactic in U.S. politics since 1812, when Massachusetts Gov. Elbridge Gerry signed a bill that helped his fellow Republicans by packing rival Federalist Party voters into a handful of election districts. California has also been home to gerrymandering hardball. After the 1980 census, Rep. Phillip Burton, D-San Francisco, became a legend among political fixers for cutting up California’s 45 congressional districts into what Newsweek described as “a mosaic of bizarre fishhooks, meanders and cul-de-sacs.” The districts helped Democrats pick up six seats.

Thankfully, California voters approved Proposition 11 in 2008 and Proposition 20 in 2010 to assign redistricting duties to a commission. The timing was perfect, because since the 2010 census, advanced statistical analysis has enabled the most extreme gerrymandering the nation has ever seen.

Now the U.S. Supreme Court has agreed to hear Gill v. Whitford, a challenge to election borders crafted by Wisconsin Republicans in 2011 for the state Assembly. The gerrymander was so effective that in 2012, Republicans won 60 of the 99 seats despite Democratic candidates winning more votes.

Per the unusual process of how the federal courts handle legal challenges to redistricting, a panel of three federal judges reviewed the gerrymander and concluded in November on a 2-1 vote that the Wisconsin Assembly’s election borders were unconstitutional because of how much they diminished Democrats’ electoral clout. The dissenting judge noted that the U.S. Supreme Court had in the past explicitly allowed states to engage in partisan gerrymandering — so long as district borders didn’t unfairly limit the influence of African-Americans.

But as much as originalists hate it, judges change their minds in response to new circumstances. Given how much the Wisconsin gerrymander helped Republicans and hurt Democrats, the argument that gerrymandering makes some voters much more equal than others — that it has evolved from a crude bludgeon to a scalpel capable of carving up democracy — has resonance. The ruling rejecting the Wisconsin redistricting made this point and described the practice as trampling on both First Amendment political speech rights and the 14th Amendment’s guarantee that every individual must receive equal protection under the law.

Which brings us to Justice Anthony Kennedy, who once again appears to be the swing vote between four conservative justices who revere precedents and four moderate-liberal justices who see the Constitution as a living document. Kennedy has already wrestled with this specific issue in the 2004 Vieth v. Jubelirer case. In his concurring opinion joining a decision upholding a gerrymander, Kennedy wrote about his reluctance to set a new standard that decreed what level of partisanship was excessive. But he also added, “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

What will Kennedy do now? Maybe no one should hold out hope. Just last month, in a gerrymandering case focused on racial sequestration in North Carolina, Kennedy signed a dissent in which Justice Samuel Alito strongly defended political gerrymandering as a “traditional domain of state authority.”

But what was done in Wisconsin shouldn’t be acceptable. A state tradition that enables shabby abuses of power isn’t a tradition worth preserving.

Twitter: @sdutIdeas

Facebook: San Diego Union-Tribune Ideas & Opinion