On October 3rd the Supreme Court heard oral argument in a case that will, for better or worse, literally reshape American democracy. Wisconsin plaintiffs in Whitford v Gill asked for constitutional protection against the dilution of their votes from extreme partisan gerrymandering in the state, the practice of drawing legislative and Congressional district boundaries to maximize the seat advantage for the incumbent party. Several justices voiced concern over the courts jumping into this political thicket. But there was no acknowledgement that this Court has been an enabler in allowing political parties to draw electoral districts with the explicit goal of maximizing electoral advantage, over the right of citizens to cast an equally weighted vote.
In Gerrymandering in America: The House of Representatives, The Supreme Court and the Future of Popular Sovereignty we show that the amplification of partisan gerrymandering can be traced directly back to the Court’s 2004 decision in Vieth v Jubelirer. A plurality of Justices in that case, led by Antonin Scalia, held that partisan gerrymanders were non-judiciable, and that courts could not intervene. But even in his concurring opinion, Justice Anthony Kennedy foresaw that “if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow.”
With such a clear signal from the Court that there was no longer a threat of judicial review, parties in control of state legislatures were unrestrained in their pursuit of partisan advantage. After the first round of post-Vieth redistricting, the level of partisan bias in the 2012 Congressional elections nearly tripled. The magnitude of bias even increased in states that were already gerrymandered by the governing party in the 2001 redistricting cycle. The Court’s action in Vieth thus initiated a quiet revolution, enabling legislatures in several states to undermine political equality, and has sparked a smoldering constitutional crisis.