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Gerrymandering challenges keep rising

February 7, 2018

When a group of Michigan voters filed a complaint in December over partisan gerrymandering, it brought to seven the number of such challenges filed since 2016 and fueled hope that the U.S. Supreme Court will not only agree the practice is unconstitutional but also offer guidance for how to draw district lines.

The Michigan case was filed by a team of attorneys at Faegre Baker Daniels LLP and Goodman Acker, P.C., on behalf of the League of Women Voters of Michigan and 11 other residents. Like similar complaints filed in Wisconsin, Maryland, Pennsylvania and North Carolina, the Wolverine State voters argue their state’s “durable and severe partisan gerrymandering” violates the First Amendment’s free speech and association rights and the 14th Amendment’s Equal Protection Clause.

Yeager Yeager

“This is what, I think, drives a lot of interest for the lawyers in this, is the frustration at wondering, how could this be legal?” said Jay Yeager, partner at Faegre in Indianapolis. “How could it be legal that the state government under the color of state power constrained by the due process obligations imposed on it by the 14th Amendment can openly discriminate against people in one party because they’re members of that party?”

The case is League of Women Voters of Michigan et al v. Ruth Johnson, 2:17-cv-14148.

Starting in 1986 when Indiana Democrats carried their complaint to the Supreme Court in Davis v. Bandemer, 478 U.S. 109 (1986), a slim majority of the nine justices have consistently declined to offer a ruling. They maintained that drawing district maps in a manner that dilutes a party’s own vote is a matter to be resolved by the legislative branch and not the courts.

However, the case from Wisconsin, Gill v. Whitford, 16-1161, has sparked another push against partisan gerrymandering and inspired a rash of likeminded complaints in other states. The Supreme Court heard oral arguments in Whitford in October and added the case from Maryland, Benisek v. Lamone, 17-333, to this term’s docket. Arguments in that dispute are set for March 28.

Yeager and his team at Faegre had been working on the case from Michigan for a couple of years, examining the data and finding stark disproportionality between the number of votes versus the number of seats. An example of their analysis, included in the complaint, shows Republicans have won between 46 percent and 51 percent of the popular vote since 2012 yet occupied 64 percent of the Congressional seats.

The parties controlling statehouses are turning to data and algorithms when drawing district maps. More than giving their candidates an advantage, these districts have a durability that will enable them to remain in power even if the voters in the districts swing 1 percentage point or even 3 percentage points to the other party.

Yeager said the minority party overcoming that kind of tilt would be “extraordinarily difficult.”

Catching fire

Once a topic that caused eyes to glaze over, the methods used to draw congressional and state legislative districts have been capturing the public’s interest.

gerrymandering-factbox.gifWhen Indiana convened a special commission to study how districts are drawn and recommend alternatives to establish the districts, the growing concern among voters over gerrymandering was apparent. Many people traveled from across the state to attend those meetings and hear what the presenters had to say.

Kennedy Kennedy

“I think all of a sudden, people said this has gone too far,” said Sheila Kennedy, a member of the redistricting commission. “It’s one thing to play around and get a little advantage. It’s another thing to take the Democratic process hostage.”

Ironically, gerrymandering is a true bipartisan issue. Both Democrats and Republicans do it when they are in power and, Kennedy believes, both sides are interested in correcting what has become a “very flawed system.” Legislators realize, she said, that constituents trust the system more when they feel their votes count.

Gerrymandering is “one of those things that takes a very long time to catch fire, to become an important issue that people understand,” said Kennedy, professor at the School of Public and Environmental Affairs at Indiana University-Purdue University at Indianapolis. “Now that they do understand, I think we’re going to see movement.”

Ruckelshauser Ruckelshaus

Sen. John Ruckelshaus, R-Indianapolis, knows from personal experience the consequences of gerrymandering. He was first elected to the Indiana General Assembly in 1990 but the 1991 redistricting by Democrats drew him right out of the Legislature when his term ended in 1992.

He returned to the Statehouse in 2016 and has noticed gerrymandering seems to be more on the minds of voters than it was 25 years ago. Whenever he holds a town hall, he knows his constituents will likely want to talk about redistricting.

Both Kennedy and Ruckelshaus see the elevated discussion around gerrymandering as a reflection of today’s political polarization. The 2016 presidential election inspired some voters to become more engaged and others to become frustrated because their vote didn’t seem to count.

Conventional wisdom holds that the best way to produce fair districts is to turn the whole process over to an independent commission. That was the recommendation from the group Kennedy served on, the Special Interim Study Committee on Redistricting. Also, Ruckelshaus introduced a bill this session that would have established such a commission, but Senate Bill 159 did not get a committee hearing.

A drawing lesson

Now Kennedy and Ruckelshaus hope the Supreme Court of the United States uses Whitford and Benisek to offer some guidance on drawing voting districts.

Mappes Mappes

Even without clear definitions of what is and is not allowed, Harmony Mappes, partner at Faegre, said the Supreme Court can still curb gerrymandering by ruling the practice unconstitutional. Legislators have been operating under the assumption they can draw districts according the political preference and have spoken openly about their intentions to gain an advantage.

“I think even just the ruling, it’s unconstitutional, well, the state can avoid litigation by not gerrymandering,” Mappes said. “You can avoid litigation by trying to draw a fair map.”

However, rules and appearances do not guarantee fairness.

The redistricting plan that Massachusetts Gov. Elbridge Gerry signed into law in 1812 contained the distinctive salamander-shaped district that gave rise to the term “gerrymander.” But, Yeager noted, with today’s approach using data and computer processes, the “horribly contorted districts” are mostly gone, so the problem is not visible to the naked eye.

As for having rules about how districts should look, Yeager pointed to Michigan, which followed its state redistricting guidelines but still, according to the plaintiffs, ended up with bad gerrymandering. Again, the power of data can overcome the boundaries put in place by the rules and still create a lasting partisan gerrymander. The remedy, he said, is what the Indiana commission recommended — have an independent group draw the districts.

“If you have a truly independent commission, it’s going to be very hard for some litigators to say you drew those lines intentionally to favor one party or the other,” Yeager said. “Whereas when you have a caucus of one house of the legislature (drawing the maps), it’s often not that hard to make that showing.”•

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