One of the hardest things to do in life is to admit when you’ve made a mistake. I can only imagine that task is exponentially harder if you’re a public figure whose admission will be heard by thousands or millions of people. So when a public figure does come out and acknowledges that they were wrong about something, or that they made a bad decision, and they simply own it – no excuses, no blaming it on anyone or anything else – I give them a lot of credit.
The particular public figure I have in mind at the moment is one you probably haven’t even heard of – unless you happen to be from Wisconsin – but his decision-making could be immensely consequential for the entire country. This person is Dale Schultz, a former Republican member (and one time Majority Leader) of the Wisconsin State Senate.
Schultz’ story comes in the context of the upcoming Supreme Court case, Gill v. Whitford, in which a group of plaintiffs are challenging Wisconsin’s partisan gerrymandering. The Court has previously ruled that gerrymandering based on racial grounds is unconstitutional, but so far, the Court has never struck down a legislative map based on partisan gerrymandering. At issue in Gill is not whether all partisan gerrymandering is impermissible, but whether it is impermissible in extreme cases. In other words, is there a point at which the gerrymandering goes so far, that it becomes unconstitutional?
DC Deciphered first told you about this case back in July, in a post called Please Don’t Go, when there was speculation that Justice Kennedy might retire. As in so many Supreme Court cases these days, Justice Kennedy is expected to be the crucial vote in this case. There is reason to believe, based on previous history, that Kennedy is at least (maybe, possibly) open to finding for the Plaintiffs in this case. If the Court were to hold that extreme partisan gerrymandering violates the constitution it would be a blockbuster result, because right now, Democrats are at a massive electoral disadvantage throughout the country due to widespread gerrymandering by Republican legislatures in numerous states. I highly recommend reading DC’s previous post on the Gill case for a fuller explanation of the background of the case and Kennedy’s history on the subject of partisan gerrymandering. (I will repost it below for those who don’t like to “click over.”)
As for Dale Schultz, he was still a member of the Wisconsin Senate back in 2011, when Republicans controlled the state Senate, the state Assembly and the Governor’s office. They took advantage of that rare opportunity to put in place a redistricting map that overwhelmingly favored their party – it was one of the most extreme partisan gerrymanders in the country. Though Schultz was what you’d probably describe as a “moderate” Republican and occasionally bucked the party on some of their policy priorities, he happily welcomed this chance for his party to augment its power. Looking back at that time, Schultz recently told Emily Bazelon of the NY Times that “The way I saw it, reapportionment is a moment of opportunity for the ruling party.” Schultz, along with every other Republican in the Wisconsin legislature, voted for the new maps that virtually insured them overwhelming wins. No Democrats voted in favor.
In the election that followed – November 2012 – despite winning only 47% of the vote, Wisconsin Republicans won 60 out of 99 seats in the Wisconsin Assembly. Similar numbers have resulted in the elections since. The basis of the Gill v. Wisconsin lawsuit was born. If you’re interested in this topic, I would definitely recommend reading Bazelon’s entire article from the NY Times Magazine, which gets into more detail about the intense secrecy of the Wisconsin redistricting project, how legislatures are using computer modeling in order to make ever more precise maps that perfectly apportion voters, and a bit more history about the lawsuit. But she frames the article through the lens of Dale Schulz, beginning with his initial excitement – as noted above – at the prospect of his party gaining even more power.
Bazelon goes on to tell us however, that Schultz left the Wisconsin Senate in 2015. And after a few years of watching just how powerful the results of the Wisconsin redistricting process were, he now wishes he had opposed the new map. He explained to Bazelon:
When you talk to people about our government, the thing they tell you is it’s rigged. The redistricting we have now is the essence of that. Some people’s votes don’t count for much anymore. We have to change that.
Schultz really appears to mean it. Along with a former Democratic member of the Wisconsin State Senate, he formed the Fair Elections Project for the purpose of fighting gerrymandering. The organization helped spearhead the lawsuit that eventually made it s way to the Supreme Court as the Gill v. Whitford case. He says that he hopes the Supreme Court will be convinced by their argument to take the redistricting process out of the hands of legislators:
Right now, they’re picking the voters, instead of the other way around.
And I’m happy to say that Schultz is not the only Republican who is now speaking out against gerrymandering. Republican Senator John McCain recently filed an amicus brief together with Democratic Senator Sheldon Whitehouse in the Gill case, asking the Supreme Court to uphold the lower court’s ruling that Wisconsin’s maps were unconstitutional. (An amicus brief is a “friend of the court” brief submitted to the Court by someone who is not a party to the case. The brief makes an argument or offers information to try to influence the Court’s decision. The Court can pay as much or as little attention to the brief as it chooses. But the party submitting the brief generally must have the consent of the Court to do so).
Separately, a group of current and former Republican lawmakers – including Republican Governor John Kasich, former Republican Governor Arnold Schwarzenegger and former Senator Bob Dole – filed an amicus brief asking the Court to find Wisconsin’s gerrymandering unconstitutional. And in a third amicus brief a bipartisan group of current lawmakers – including several Republican Congress members – also argued that the court should put a check on partisan gerrymandering.
Though the numbers are not great, the fact that there are any Republicans joining the fight against partisan gerrymandering is quite significant. As I noted above, at the moment – and for the foreseeable future, it is the Republican Party that overwhelmingly reaps the rewards from gerrymandering. This is not because Democrats are saints. They are guilty of gerrymandering too. But because Democrats got “shellacked” all across the country in the 2010 elections, right before the last round of redistricting took place, Republicans were able to control the process in way more states than Democrats (Republicans control redistricting in 17 states versus 6 for Democrats. Other states use commissions or have lines drawn by courts).
And, importantly, Republicans control the process in most of the swing states. Along with Texas, six swing states account for almost all of the gerrymandering the country: Michigan, Ohio, Pennsylvania, Virginia, North Carolina, and Florida. At the time of the last redistricting, Republicans had full control of all of those states. (PA, VA and NC have since elected Democratic Governors). That’s why most political science experts estimate that in order for Democrats to win the House of Representatives back in 2018, they will have to win the nationwide vote by approximately 8 – 12 points. That’s how much of an advantage they would need in order to actually win a majority of the House seats.
And gerrymandering is a vicious cycle. Because once a Party in power decides it’s going to gerrymander itself into more power, it’s very difficult to get them out of power. By its very essence, the gerrymander dilutes the power of the voters. So with a strong gerrymander, the ruling Party can cement its power for decades. And with the power the Republican Party has right now around the country, with the majorities they have in so many states, they have the ability to do just that.
So, even though Democrats are no angels when it comes to gerrymandering, it is Republicans who really benefit from the gerrymander right now and possibly for generations to come. That’s why it’s extremely heartening to see that there are a decent number of Republicans who are putting principle ahead of power and fighting to keep our democracy strong.
The Supreme Court has scheduled oral arguments in Gill v. Whitford for October 3, 2017.
Phew! Progressives across the country breathed a sigh of relief the Monday before last, when the final day of the Supreme Court session came & went with no retirement announcement from Justice Anthony Kennedy. We’re not quite out of the woods yet, because Kennedy could still announce his retirement any time over the summer (Justice Sandra Day O’Connor, for example, announced her retirement in July of 2005). But Justice Kennedy has already hired his clerks for next year, which is a good sign he plans on sticking around for the session.
However, there have been recent reports that he’s told clerkship applicants for the following year (fall 2018) that he’s thinking about retiringthen. And once again a terrified chill runs through left-leaning America! But if Justice Kennedy at least sticks around for the upcoming session, that will be very good news, because the Court will be hearing two cases that are absolutely crucial to the entire progressive agenda – both short and long term.
Justice Kennedy has obviously held an outsized role on the Court ever since Justice O’Connor’s retirement, at which time Kennedy became the Court’s swing vote. So his presence on the Court (versus a Trump-chosen replacement) is critical to progressives for an endless number of reasons. But these two particular cases coming up next session are paramount because they will help determine whether Democrats will be able to find their way back into legislative power, or whether Republicans have cemented a near-permanent lock on power at all levels throughout the country.
You see, that is one area of policy making where Republicans have focused a great deal of energy over the last two decades – methods for ensuring that once in power, they stay there. They have done this by enacting laws that allow them, in essence, to design their own electorates. This includes things such as extremely onerous voter ID laws, changes to voting hours & locations that target particular districts, voter roll purges, gerrymandering, and ultimately a lawsuit that ended with the bulk of the Voting Rights Act (VRA) being overturned.
There is of course much, much more to say about this history – entire books could be written about it (in fact, they have). But I’m not going to even try to cover that here, because to do it well would take much more than a blog post. So for those interested, I recommend one of the above linked books and/or Ari Berman’s vast collection of articles on the topic at The Nation.
The key point is though, Republicans have had a lot of success using those tactics over the last nearly-20 years. They are now in control of every branch of the federal government along with the vast majority of state governments. They have the ability now to implement these policies at every level all across the country. And in so doing, they can make it increasingly difficult for Democrats to ever find their way back into power, thus imperiling the progressive agenda from here on out. But in the upcoming session of the Supreme Court, two of those tactics will be on the docket. And while Justice Kennedy’s record on voting rights is mixed (he was among the five Justices who voted to overturn the VRA), as long as he is still on the Court, progressives at least still have hope for a positive outcome.
Gill v Whitford
One of the two cases the Court will be reviewing next session is Gill v Whitford, a case out of Wisconsin. The question in this case is whether partisan gerrymandering is unconstitutional. The Court has already said that gerrymandering based on racial grounds is unconstitutional, but so far, the Court has never struck down a legislative map based on partisan gerrymandering.
The case is an appeal from a lower court decision striking down a Wisconsin State Assembly map drawn by Republicans after they took over the state legislature in 2010. The case was brought by a group representing Wisconsin voters. After the new map went into effect, the Republican advantage that resulted was clear:
In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.
Why It’s So Relevant
And this sort of gerrymandering is not limited to Wisconsin. Republicans, who famously “shellacked” Democrats in elections across the country in 2010, were in control of redistricting that year in the vast majority of states, including most swing states (redistricting is done in census years, every ten years). And boy, did they take advantage of it.
In the first election that followed that redistricting (2012), Democrats won a majority of the votes in House elections (50.59%) yet Republicans ended up with a 33 seat advantage in the House. Now, some of that is just because of natural geographic distribution (Democratic votes are more condensed in cities & some suburbs, Republican votes tend to be spread out through exurbs & rural areas), but a very large degree of that was gerrymandering.* According to Politifact, it was only the second time in 70 years that a party had won the majority of the House vote but didn’t take the majority of the seats.
And these effects have continued in the elections since. A study from the Brennan Center that looked at the 2016 election found that these effects were particularly strong in swing states, such as North Carolina, Michigan and Pennsylvania.
In North Carolina in 2016, for example, Republican candidates received 53 percent of the total votes for the House, but won 10 of the 13 congressional seats . . .
[I]n the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias.
And a recent analysis by the AP found that in 2016, as a result of gerrymandering:
Republicans won as many as 22 additional U.S. House seats over what would have been expected based on the average vote share in congressional districts across the country. That helped provide the GOP with a comfortable majority over Democrats instead of a narrow one.
Overall, this partisan gerrymandering means that Democrats have to overcome extraordinary odds to have any shot at taking over the House in 2018. We frequently see polls showing match-ups between the parties, asking who the public favors in Congress. And so far this year, Democrats have led nearly all of them. But simply leading them is not enough. Most political scientists believe Democrats would need to win the House vote by a margin in the range of 7-12% in order to actually win the majority of House seats.
As you can see, if this sort of extreme partisan gerrymandering were no longer permitted under the law, it would be transformative. (Keep in mind, even then, parties would still likely draw maps that favor themselves. That would still be permissible up to a certain threshold, before it would cross over into an impermissible partisan gerrymander – but where exactly that threshold would be is the question the Court is still trying to answer). If, on the other hand, this gerrymandering is allowed to continue, it will most likely only further solidify the GOP’s hold on power, as they use their majorities to create ever more favorable electorates. So how likely is it that the Court will actually decide this is unconstitutional?
What Will the Court Do?
Let’s assume the four more liberal Justices will uphold the lower court decision striking down the gerrymander (there’s no guarantee that they will, but it seems likely based in their history in voting rights cases). So we’re back where this post started: Justice Kennedy. For a bit of a hint on what he’ll do, we can look to an earlier Supreme Court case, where the Court actually considered the question of partisan gerrymandering once before.
The case was Vieth v. Jubelirer, decided by the Supreme Court in 2004. In that case, five Justices, including Justice Kennedy, held that partisan gerrymandering can be unconstitutional, but the Court had no workable test for determining when the line into impermissible gerrymandering had been crossed or for how such an instance would be fixed. Therefore, Kennedy said, as long as there was no workable test, the Court should not step in.
So the Vieth case demonstrated that Kennedy is open to the idea that partisan gerrymandering can cross the line into unconstitutionality. The big question in Whitford will be whether the respondents have come up with a test that the Court will consider workable, i.e. is there a consistent way to determine where exactly that key threshold lies? Two political scientists think they’ve come up with that test, as Dylan Matthews explains in this Vox article. There’s a whole lot riding on whether or not the Supreme Court agrees with them. Sometime next year, we’ll find out.
And here’s Part 2 of this post, in which DC Deciphered discusses the second crucial case that will be reviewed by the Supreme Court next session . . .
To see how much of this disparity results from gerrymandering as opposed to natural geographic sorting, let’s look at the 2008 election, before this extreme gerrymandering took place. Democrats won the overall House vote in 2008 with 53.2% of the vote. That was enough to earn them 257 seats to the Republicans’ 178, a huge Democratic majority.
Today, that win percentage likely wouldn’t even be enough to give Democrats a majority of seats at all. As noted in the body of the post above, Republicans would likely hold onto their majority in the House if Democrats were to win the vote by that margin in an election held today.