Superficially, the question in Gill v. Whitford—the blockbuster case about partisan gerrymandering in Wisconsin, to be heard next month by the Supreme Court—is a legal one. Is the test for gerrymandering adoptedby the trial court “discernible,” or rooted in the high court’s precedent, and “manageable,” or consistent in the results it would produce? Lurking beneath this question, though, is a more fundamental debate about the nature of voting and representation in modern American politics. The position the Supreme Court takes in this debate will likely influence its decision more than any legal argument. In its amicus brief, the Wisconsin legislature tells a rosy tale of voter and legislator behavior. Wisconsin voters do not “blindly support one party or the other,” the brief contends. Rather, they often split their tickets, or change their allegiances from one election to the next, based on “issues that matter to the electorate” and “the quality of the candidates and their campaigns.” Legislators, similarly, are highly responsive to their constituents’ preferences. Competitive races “force the winning candidate to adopt more moderate, centrist positions,” while “a landslide may allow that candidate to move further from the center.”
This is indeed how American politics worked in the not-too-distant past. Between the 1964 and 1972 presidential elections, for example, there was an almost 50-point net swing in Republicans’ favor. In this era, Congress was also full of conservative Southern Democrats and liberal Northeastern Republicans. Party was plainly a poor predictor of voters’ and legislators’ choices.
If this story were still true today, there would be little reason for the courts to police partisan gerrymandering. Consider voters: If they ignore party labels and cast their ballots based on issues and candidates, gerrymandering would not be durable enough to warrant judicial intervention. An unfair outcome in one election could easily disappear in the next one. Or take legislators: If they mirror their constituents’ opinions, it barely matters how many Democrats or Republicans are elected. Regardless of its partisan composition, the legislature would pass essentially the same laws.
On the other hand, the plaintiffs in Whitford (whom I help represent) argue that party matters a great deal, both to voters and to legislators. Partisan affiliation, in this view, is the most potent driver of voter behavior. Few voters split their tickets or change their minds from one year to another. Likewise, most legislators are highly polarized. There is not much difference in terms of voting record between legislators from competitive districts and their co-partisans from safe ones.
Full Article: The case against partisan gerrymandering..