Retired professor leads Supreme Court challenge to gerrymandering

WASHINGTON: It's as American as baseball or apple pie – but the days when an incumbent party could redraw voting districts to disadvantage their opponents could soon be numbered, thanks to the tireless efforts of a retired Midwestern law professor.
The US Supreme Court on Tuesday examined the dark art of partisan gerrymandering on Tuesday for the first time in over a decade, in a landmark case that could shake up the country's political landscape.
The filing has attracted support from a large body of scholars and senior politicians from both major political parties, who believe that without independent bodies to adjudicate fairly distributed boundaries, democracy itself is under threat.
During oral arguments, judges criticised the harmful impact of the practice, but some questioned whether the "efficiency gap", a newly-devised metric to identify a gerrymander, was sufficiently rigorous.
"What becomes of the precious right to vote?" asked Justice Ruth Bader Ginsburg. "Would we have that result when the individual citizen says: 'I have no choice, I'm in this district, and we know how this district is going to come out?' I think that's something that this society should be concerned about."
But Justice Samuel Alito weighed in: "Is this the time for us to jump into this? Has there been a great body of scholarship that has tested this 'efficiency gap'? It's full of questions."
The case, which could take several months to decide, was brought by 77-year-old retired academic Bill Whitford from Wisconsin, one of several so-called swing states that are almost evenly divided along political lines.
But during state elections, he says, Wisconsin has gone solidly Republican for decades, even in years when Democrats win greater shares of the vote.
His journey began in 2012, when the Democratic party won 53% of all votes cast but only 39% of seats in the state legislature.
Frustrated, Whitford and his friends began meeting at a tea house in Milwaukee, where they brainstormed a legal challenge to what they claimed were unfair manipulations by the state Republican Party.
They won in a federal court last year, before the case was appealed to the country's top court.
Packing and cracking
Gerrymandering is almost as old as the country itself. The portmanteau was coined after Elbridge Gerry, the governor of Massachusetts, signed a law in 1812 that created a voting district in Boston that resembled a salamander.
At the heart of the matter is the issue of what political scientists refer to as "wasted votes" in winner takes all, first-past-the-post voting systems.
The US constitution envisaged that, in order to account for population growth, legislature boundaries would be redrawn every 10 years. But the centuries-old text makes no mention of independent commissions as seen in other countries (the US, after all, was the first modern democracy).
The task therefore falls to whichever party is in power and those wishing to tilt the playing field in their favour have two major tools at their disposal.
The first is heavily concentrating their opponents' likely voters into districts that allow them to win those areas by heavy margins – thereby wasting every vote above the 50% mark – known as "packing".
"Cracking" on the other hand involves spreading opponent voters across districts where the favoured party maintains a slim majority, thereby ensuring the losers' votes are wasted.
"In a fair districting," says Whitford, "the wasted votes would be equal for both parties. If one party has more that's effective packing and cracking."
'Workable standard'
The last time the Supreme Court heard a major challenge to gerrymandering was in 2004, when the late justice Antonin Scalia led three other judges who voted against reform in declaring that the matter was "non-justiciable" partly because of the difficulty in predicting voters' likely intentions in advance.
Four other judges voted in favour of reform while Justice Anthony Kennedy – still on the court today – voted against but left the door ajar by saying he could be persuaded in future if courts were presented with a "workable standard" by which to assess whether a district had been gerrymandered.
"The hope for this case is to persuade Justice Kennedy that political scientists have come up with better metrics and models," said Whitford.
The plaintiffs have presented a new measure known as the "efficiency gap" – the difference between the two parties' wasted votes, divided by the total votes cast – devised by academics Nicholas Stephanopoulos and Eric McGhee.
Paul Smith, an attorney for Whitford, told the bench: "Politicians are never going to fix gerrymandering. They like gerrymandering."
But Erin Murphy, representing the state of Wisconsin, said: "Plaintiffs have not identified a workable standard for determining when the inherently political task of districting becomes too political for the constitution to tolerate."
Adding weight to the challenge are "amicus briefs" – not just by academics, but also senior Republicans like former presidential candidate Bob Dole, Senators John McCain and John Kasich, and actor-turned-politician Arnold Schwarzenegger. — AFP