The NCSL Blog

03

By Wendy Underhill

The U.S. Supreme Court is hearing Gill v. Whitford, a redistricting case out of Wisconsin today.

Supreme CourtThe bone of contention is whether the plans drawn by the Legislature in the 2010 cycle are so partisan as to be unconstitutional.

We’ll know the answer to that sometime down the road. But here’s a quick rundown on what’s in the rearview mirror in terms of partisanship and the Supreme Court: Three previous decisions that set the historical stage for today’s hearing.

Davis v. Bandemer (1986): In Indiana, Democrats said that the legislative maps drawn by the legislature in the 1980 redistricting cycle were unfair to their party, based on the equal protection clause of the 14th Amendment. A federal three-judge panel struck down the maps, and the defendants went to the Supreme Court, saying that partisanship is not inherently unconstitutional. The Supreme Court overturned the earlier ruling, but not because it is impermissible for the courts to address partisanship in map drawing. Here’s the key clause from the opinion: “We hold that political gerrymandering cases are properly justifiable under the Equal Protection Clause.”

Instead, it overturned the earlier ruling because “a threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation.” Key words: threshold showing. The plaintiffs hadn’t provided a test or measure by which to decide what amount of partisan leaning was too much.

Vieth v. Jubilerer (2004): In Pennsylvania, Democrats said that the plans drawn in the 2000 cycle were unfair to their voters for a variety of reasons. After a couple of those issues were sorted out, the case went to the Supreme Court for a hearing on partisanship. Four judges said that partisanship in maps is a political issue, not a legal issue; four said it is indeed appropriate for courts to weigh in, and that there are some quantifiable tests or measures that can be used. But the one opinion that mattered, as is so often the case, belonged to Justice Anthony Kennedy. In a concurrence with the first four—which gave five votes for allowing the Pennsylvania maps to stand—he said, “If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.” In other words: in Vieth, he wasn’t swayed by available tests, but he didn’t discount the potential for ones to develop.  

League of United Latin American Citizens v. Perry (2006): Texas’ Legislature redrew its maps mid-decade in the 2000 cycle, after the GOP gained control of the House (it already held the Senate and  governorship). Democrats challenged the new maps, saying the maps were drawn for partisan gain and violated a host of districting principles. In the end, the maps were allowed to stand. One reason: “We conclude that appellants have established no legally impermissible use of political classifications.”

That’s it: Three cases, three decisions. And still the question remains whether an acceptable way to measure how much partisanship is too much exists—or whether there is no limit at all. Redistricting is inherently political, after all. 

Wendy Underhill is the director of elections and redistricting at NCSL.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.