On Monday, October 3rd, the Supreme Court heard oral arguments in Gill v. Whitford, a potentially landmark case concerning partisan gerrymandering in redistricting the Wisconsin state legislature. Partisan gerrymandering, the drawing of legislative district lines to favor one political party over another, has long been commonplace for legislature at all levels of government. The Supreme Court has previously said the practice might be unconstitutional, but has never overturned a districting plan on this basis.
In New York State the redistricting process is done by LATFOR (The Legislative Task Force on Demographic Research and Reapportionment). It is no secret that there is an agreement between the Republican-led State Senate and the Democratic-led Assembly that each house majority does their own redistricting and signs off on the other. This bipartisan gerrymandering has been the practice for a long time; the outcome in Gill v Whitford is therefore very important for New York.
In 2014 an amendment to the New York State Constitution passed, allegedly reforming the redistricting process. It established a decision process and redistricting commission with multiple appointing authorities, but left final say with the legislature. Though this has been touted as real reform to the redistricting process, it is telling that a judge ruled in Leib vs. Walsh that the term “independent” had to be struck from the ballot language describing it when it was adopted. Susan Lerner of Common Cause New York said of the amendment: “We should not be memorializing partisan control of redistricting — this requires it. There is a set of voting rules that is dependent on who is in the majority of either house. And the criteria for redistricting are deliberately structured so they can do anything they want to with the maps and not provide guidance for the courts. They don’t have to consciously discriminate. They can just ‘respect the cores of existing districts’ .”
At best the amendment maintains the status quo under the guise of reforming the process; at worst it makes partisan gerrymandering the norm. It will be interesting to see how the hyper-partisan redistricting process established in New York the 2014 amendment would operate should the U.S Supreme Court impose a restriction on partisan gerrymandering. And then there is a question of how the currently gerrymandered districts can be fixed in the next round, not too far off, if the New York State constitution requires that the cores of the existing districts be respected.
Examples of a partisan gerrymander that might not pass scrutiny under whatever tests the Court may impose are State Senate Districts 50 and 53. These were drawn to split the heavily Democratic City of Syracuse, and place those voters in large swaths of the surrounding rural areas that lean heavily Republican. Currently the 50th District is held by the powerful Republican incumbent, John DeFrancisco. The 53rd district is held by long-time incumbent Democrat David Valesky, who is among the Independent Democrats aligned with Republicans to control the chamber.
Closer to home, Assembly District 101 spans 126 miles from corner to corner crossing 5 County lines as it snakes it’s way North-South. It was drawn as a Republican district, and by packing the district with enrolled Republicans other districts adjoining it could be drawn for stronger Democrat advantage. The 101st Assembly District is represented by Brian Miller (R).
So what effect could a prohibition on partisan gerrymandering have in New York? It could be profound. Democrats would enjoy a lesser majority in the Assembly, though still a solid majority. But the Republican hold on the Senate might be ended. Over the past several election cycles, they have held on to a very slim majority, or have joined with the breakaway Independent Democrat faction to maintain control.
Legislative redistricting in counties, towns, and cities would be less affected by the ruling. With some exceptions the redistricting process in smaller jurisdictions tends to be less sophisticated, and while partisan advantage is often sought, gerrymandering is somewhat less precisely done. A constitutional prohibition on partisan gerrymander would open up local districts to judicial scrutiny, and it is reasonable to conclude that the threat of litigation would make local governments more cautious when seeking partisan advantage.
There is an old saying, often used in NASCAR: “If you ain’t cheating, you ain’t trying.” So long as it is permissible to seek partisan advantage in redistricting, those in control of the redistricting process will do so. This is one of the key problems in allowing legislators to redistrict themselves.
Should the Court in Gill v. Whitford rule that partisan gerrymandering is unconstitutional it could have a ripple effect throughout the political arena. Competitive elections would force politicians on both sides, though more so on the right, toward the center, and lessen the influence of the more extreme factions within each political party. The partisan makeup of legislative bodies throughout the country would more closely resemble the makeup of the jurisdictions as a whole. Perhaps this is overly optimistic, but it could be the beginning of a new era of collaboration and compromise between political parties, or at least usher in a new era of transactional politics. Most importantly though, allowing the voters to choose their representatives instead of representatives choosing their voters would restore the promise of one person, one vote, and go a long way towards restoring people’s faith in government and their belief that their vote matters.