As Campaign Finance Center attorney Paul Smith arguing for the plaintiffs in Gill v. Whitford told the Supreme Court earlier this month, “gerrymanders now are not your father’s gerrymander.” This case challenges the extreme partisan gerrymander of the 2011 map for districts in the Wisconsin state legislature.
Full disclosure: I signed an amicus brief in Gill with 11 other constitutional and election law scholars arguing that the Wisconsin map violated the First Amendment. The argument was based on the First Amendment’s right of free association. Not only does someone have the right to join with others to exercise political influence, such as joining a political party, but a person has the right not to be discriminated against because of their tie to that organization. I was in good company in trying to persuade the court. More than 50 amicus briefs have been filed in the case. The reason everyone wants to get a word in is because Gill could set the standards and rules for how district lines are drawn in the future.
The origins of the case lie in secret Wisconsin state legislative electoral maps drawn by Republicans, who controlled both houses of the legislature, after the 2010 census. Democratic lawmakers (and even some Republicans) were shut out of the process. Litigation in the lower courts revealed that the maps were revised multiple times so the Republicans would gain maximum partisan advantage. The three-judge panel that first heard the case found the Wisconsin map violated the constitution and then ordered the legislature to redraw the map. That effort was put on hold as the matter went to the Supreme Court.
“Gerrymandering” is the pejorative word used to describe the drawing of district lines that favor one party or another. One of the ways gerrymanders can thwart the will of the voters is when district lines are drawn in such a way that minority of voters can wind up electing a super-majority of legislators. A clever gerrymander — or many would argue…