Is the Supreme Court Finally Ready to Rule Against Gerrymandering?

Chris Kleponis/Avalon via ZUMA

Facts matter: Sign up for the free Mother Jones Daily newsletter. Support our nonprofit reporting. Subscribe to our print magazine.

Supreme Court justice Anthony Kennedy has long been the only conservative justice who’s sympathetic to arguments against gerrymandering. The problem is that, like the other conservatives, he’s been unable to figure out a concrete standard to use. How do you tell if a map is gerrymandered so much that it’s unconstitutional?

Today’s big gerrymandering hearing went much the same way. Ari Berman reports:

Kennedy was the first justice to ask a question in Tuesday’s opening arguments in the case, Gill v. Whitford. “Suppose the Court…decided that this is a First Amendment issue?” Kennedy asked Wisconsin’s solicitor general, implying that extreme partisan gerrymandering could violate the right to free speech by preventing those in the minority—in this case Wisconsin Democrats denied representation—from having an equal say in the political process.

Kennedy also seemed to suggest that the court could set a standard for when gerrymandering crosses a line….Kennedy [suggested] that a manageable standard could be whether a map was drawn with the “overriding concern
” to “have a maximum number of votes for party X or party Y.” He asked whether such a scenario would violate the First Amendment or the Equal Protection Clause of the 14th Amendment.

The Supreme Court usually sets standards in fairly non-concrete ways, so I’m not sure why gerrymandering should be any different. Kennedy’s proposed standard probably is manageable.

But the thing that surprises me is that no one mentioned what I consider the big issue in gerrymandering: computers. When gerrymandering was a human exercise, there were effectively limits on just how bad it could be. With computerization, it takes only a few seconds to produce the most highly gerrymandered map possible. This is an example of a quantitative change so big that it become qualitative—and the court should respond to that. But how? I happen to favor a standard called the “partisan symmetry rule,” which I described earlier this year:

If gerrymandering is now a brute-force, computer-driven activity, the best answer is a brute-force computer-driven rule. A few decades ago, applying the partisan symmetry rule would have been all but impossible, but today it’s easy. It’s also something that can be easily defined, and is therefore pretty easily managed by the courts.

Whether the court adopts a specific rule or a more general standard, it’s time to do something about this. Times have changed, and extreme partisan gerrymandering is just too easy. One way or another, they need to agree on a way to rein it in.

REAL QUICK, REAL URGENT

Minority rule, corruption, disinformation, attacks on those who dare tell the truth: There is a direct line from what's happening in Russia and Ukraine to what's happening here at home. And that's what MoJo's Monika Bauerlein writes about in "Their Fight Is Our Fight" to unpack the information war we find ourselves in and share a few examples to show why the power of independent, reader-supported journalism is such a threat to authoritarians.

Corrupt leaders the world over can (and will) try to shut down the truth, but when the truth has millions of people on its side, you can't keep it down for good. And there's no more powerful or urgent argument for your support of Mother Jones' journalism right now than that. We need to raise about $450,000 to hit our online fundraising budget in these next few months, so please read more from Monika and pitch in if you can.

payment methods

REAL QUICK, REAL URGENT

Minority rule, corruption, disinformation, attacks on those who dare tell the truth: There is a direct line from what's happening in Russia and Ukraine to what's happening here at home. And that's what MoJo's Monika Bauerlein writes about in "Their Fight Is Our Fight" to unpack the information war we find ourselves in and share a few examples to show why the power of independent, reader-supported journalism is such a threat to authoritarians.

Corrupt leaders the world over can (and will) try to shut down the truth, but when the truth has millions of people on its side, you can't keep it down for good. And there's no more powerful or urgent argument for your support of Mother Jones' journalism right now than that. We need to raise about $450,000 to hit our online fundraising budget in these next few months, so please read more from Monika and pitch in if you can.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate