A lawyer for Wisconsin Democrats, who have been shut out of power in the state since Republicans drew new election maps nearly a decade ago, pleaded with the U.S. Supreme Court on Tuesday to restrict partisan gerrymandering, the practice of one party using redistricting to give itself a political advantage. “The politicians are never going to fix gerrymandering,” Paul M. Smith, an attorney for the Campaign Legal Center, told the justices. “You are the only institution in the United States that can solve this problem.” Wisconsin Democrats say the 2011 Republican legislative map violated the First Amendment by punishing them for their political beliefs and violated the 14th Amendment’s equal protection clause because it intended to dilute Democratic votes but not Republican ones.
The Supreme Court has ruled that racial gerrymandering is unconstitutional in many cases, but it has never done so for partisan gerrymandering. It would open up a whole new line of attack on redistricting plans, which judges already scrutinize for racial discrimination and many other factors.
One of the reasons the justices have been so reluctant to weigh in on the issue is that they had no good way to gauge how “partisan” a redistricting plan is. But Smith and many voting rights advocates say there are several tools judges can use to make that determination.