Is the Supreme Court about to cause great political upheaval by getting into the business of policing the worst partisan gerrymanders? Signs from last week suggest that it well might. At the very beginning of its term back in October, the court heard oral arguments in Gill vs. Whitford, a case challenging Wisconsin’s plan for drawing districts for its state Assembly. Republican legislators drew the lines to give them a great advantage in these elections. Even when Democrats won more than majority of votes cast in the Assembly elections, Republicans controlled about 60% of the seats. The court has for many years refused to police such gerrymandering. Conservative justices suggested that the question was “nonjusticiable” (meaning the cases could not be heard by the courts) because there were no permissible standards for determining when partisanship in drawing district lines went too far. Liberals came forward with a variety of tests. And Justice Anthony M. Kennedy stood in the middle, as he often does. He argued that all the tests liberals proposed didn’t work, while trying to keep the courthouse door open for new tests.
Gill offers one: It’s called the efficiency gap and it measures wasted votes, or votes cast that do not contribute to victory. (The more of these a party has to swallow, the less likely it is to win.) People reading the tea leaves during oral arguments before the high court seemed to think that Kennedy was sympathetic to the Wisconsin challengers.
So far there has been no word on the outcome from the court, which issues decisions in its hardest cases as late as the end of June. There was, however, a tantalizing development late last week when the court agreed to hear a gerrymandering case out of Maryland this term. Benisek vs. Lamone involves a single congressional district drawn by Democrats to make it harder for Republicans to elect a member of Congress.