Supreme Court To Hear Pivotal Case on Partisan Gerrymandering

Posted Sept. 20, 2017

MP3 Interview with Drew Spencer Penrose, legal and and policy director with the group FairVote, conducted by Scott Harris


While Donald Trump emerged as a victor in the 2016 presidential election by winning the majority of Electoral College delegates, he lost the popular vote to his Democratic opponent Hillary Clinton by nearly 3 million ballots. One of the critical states in determining Trump’s narrow victory was Wisconsin, which he won by less than 1 percent of votes cast. Yet, Trump led Clinton in 63 of the state’s 99 Assembly districts and 23 of the state’s 33 state Senate districts.

The votes of Wisconsin Democrats are less powerful than that of Republicans because of the way in which legislative maps are drawn, where Democratic voters are packed into fewer districts. That produces results where the GOP, whatever its share of the vote in statewide races for president or governor, are likely to win a much higher share of legislative seats. The drawing of legislative district maps to provide an advantage to one party over another is known as partisan gerrymandering.

The Supreme Court will hear arguments in an important case known as Gill v. Whitford this October, which challenges partisan gerrymandering. The case reached the Supreme Court after Wisconsin’s Republican Gov. Scott Walker appealed a November 2016 three-judge federal panel ruling that ordered Wisconsin’s legislature to redraw the state assembly map due to what it found to be unconstitutional partisan gerrymandering. Between The Lines’ Scott Harris spoke with Drew Spencer Penrose, legal and and policy director with the group FairVote. Here, Penrose talks about the importance of this case and possible remedies to prevent partisan manipulation of legislative district maps. [Rush transcript]

DREW SPENCER PENROSE: So what partisan gerrymandering is, in this particular case, when one political party draws district lines in a way to maximize the number of seats they'll get, and minimize the number of seats that an opponent party will get. And in Wisconsin, it's Republicans – it actually has been more Republicans than Democrats mostly because Republicans control more state legislatures than Democrats. It's not just a Republican problem.

In fact, a very similar case is coming out of Maryland, where Democrats pretty openly gerrymandered the state in favor of Democratic candidates. The way that they do it, really goes to the heart of the case. And that is, that, if you can take district and draw it around a lot of Democratic voters, really pack in the Democratic voters, then the Democratic candidate in that district will win with like 70 or 80 percent of the vote. And basically that means that a lot of the votes were wasted on a candidate that was going to win anyway.

And then the other thing you can do is draw districts so that the Democratic can't possibly win. So, if Democrats are 40 percent of the district then all of those votes are essentially as well, but they can't help elect a candidate. And so, if you measure these wasted votes and say are there more wasted votes for Democrats than there are for Republicans? Then that means that Republicans' votes are more efficient. They're actually more powerful than Democratic votes. And that's really what partisan gerrymandering is in this case. It's where you strategically draw these districts in order to make one group of voters most powerful and make another group of voters make their votes very not powerful.

And this case is arguing that that is unconstitutional. It's not the first time that people have tried to make this case. However, it's been very really difficult to get courts to buy into any particular theory of how you determine when this is has happened and when it hasn't, because it's something that can happen just sort of naturally. The people drawing the district lines will be trying to group communities of interest and that sort of thing. The system isn't really designed to create a fair representation. It's a winner take all system and so, sometimes that creates disparities on its own and of course, I've been really hesitant to jump in and try to adjudicate these. But this one's really different. It's a really extreme case of partisan gerrymandering. A really clear case. And what they have that's different from prior cases is that have developed a test, a very simple mathematical test for how you determine if a state is really very lopsided.

And that's what Justice Kennedy has asked for before in prior cases where theories like this have failed. He's asked for a clear test and this time they have one. So, it's a really interesting time. In this case it's before justices who are now on the court who are considered liberal, vote the same ways before them, which I think most people expect that they will and if Justice Kennedy is convinced, then that will be a five-justice majority and that'll be the first case to strike down a partisan gerrymander.

BETWEEN THE LINES: Could you explain to our audience some of the methods that you and your organization favor for determining district maps across the country, state by state that won't skew the electorate in a way that gives one party or the other party a partisan advantage?

DREW SPENCER PENROSE: So, I was talking about wasted votes earlier, that's how gerrymandering is done. It's by manipulating wasted votes. The method that we think it really the best for the United States is called ranked choice voting. If you apply ranked choice voting to a five-winner election, then the number of wasted votes necessarily goes down almost to zero. So of course, the number of wasted votes will be the same between the Democrats and the Republicans because it will be zero. If there are no wasted votes, then there's no disparity in wasted votes. We've had a proposal that we call the Fair Representation Act, which is a model proposal for electing Congress in multi-winner districts, with ranked choice voting. This year in June, our representative, John Beyer from Virginia, actually introduced it as a bill. So there's a bill in Congress right now, HR 3057, that would elect all of Congress from multi-winner districts with ranked choice voting. That would effectively end gerrymandering for all of Congress.

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