In the last few weeks, nothing has rocked the political world more than the Pennsylvania Supreme Court stepping in and redrawing the state’s “unfair” GOP drawn Congressional maps.  For historical context, the maps were drawn after the GOP wave of 2010 and have helped lead the party to a 13-5 Congressional majority even in a state where the electorate is nearly divided evenly.  Realizing they could not win elections fairly, against Congressional Republicans who outran the top of the ticket in “unfair” districts, Democrats and progressives hatched a plan.

With the election of Democrat Tom Wolf in 2014 to the Governorship the party went all in on 2015 and elected three Democratic judges to the state supreme court (partisans on courts is such a good idea).  From there, the party issued a lawsuit alleging the Congressional map was unfair, and unsurprisingly, due to the new partisan bent of the court, succeeded in having the old maps overturned.  With the legislature and Governor unable to agree on new maps the court stepped in and guaranteed through “fair” means Democrats would gain three to four seats.  Herein lies the biggest danger to having the courts (elected or unelected) and independent commissions draw political lines.  There is little to no way to redress the political nature of the line-drawing unlike in elected legislatures.

Pennsylvania Has Seen This Before

In 1994, Republicans won complete control of state government for the first time in a decade and managed to maintain that hold up into the 2000 Census.  This allowed the GOP to guide the redistricting process when Pennsylvania lost two of its 21 Congressional seats.  The GOP at the time held 11 of the state’s 21 House seats and was mandated to maintain at least two majority-minority districts.  The party tried to squeeze Democrats everywhere else.  They succeeded.  After the 2002 elections they held 12 of the state’s 19 seats but lost the majority of them in the 2006 and 2008 elections.

Ironically, sensing they could not win at the ballot box, Democrats presaged their 2018 strategy by going to the Supreme Court in 2004. In Vieth v. Jubelirer, a group of Democratic voters sued the state for violating their constitutional rights due to gerrymandering.  In a 5-4 decision, the court denied the claim due to the fact there was little way to determine when a map violates a voter’s rights.  However, political gerrymandering remained a justicable issue by the courts.  Just two years later, Democrats would waltz to victory in legislative and Congressional battles under lines that were supposedly unconstitutional.

Do We Really Want Courts and Commissions Drawing Maps?

The number of cases we have where partisan actors possibly masquerading as non-political actors in drawing maps that clearly favor one party over the other just recently are numerous.  Take the case of California’s Independent Redistricting Commission.  The Commission redrew lines that resulted in the GOP losing four seats and not gaining a single seat.  But, the Commission was non-partisan, correct?

In Arizona, we saw the situation boil over.  Voters approved an amendment creating a non-partisan Commission made up of two Republicans, two Democrats and an Independent.  The resulting map, despite a strong GOP victory in 2010 led to a 5/4 GOP split in the Congressional delegation and cost the GOP their super-majorities in the state legislature.  The result was the partisan GOP Governor and legislature suing the Commission which ultimately went all the way up to the Supreme Court.  The Court, in its ruling reaffirmed the right of Commissions to redraw political lines (a legislative act) if approved by the voters (just as legislatures are).  But the inherent nature of a non-partisan actor trying to engage in a political process caused such friction.

Then we come to Pennsylvania.  This is perhaps the most egregious example of the contortions Courts will have to engage in to enter this political arena in  supposed non-political way.  In it’s 4-3 finding, the state Supreme Court invented standards not even found in state law.  The court merely asserted new maps must  “consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”  Warning of the results, the three dissenting justices (including a Democrat) argued this would set a dangerous precedent. Secondly, the Court gave little time for the elected legislature and Governor to come up with a new map (supposedly due to the upcoming filing deadline).  This is even more egregious because virtually every court has taken the opposite approach and not engaged directly in the map-drawing process.  But Democrats had the votes and would use them.  Lastly, the Court becomes a political actor by default.  The New York Times has an excellent analysis but somehow the supposedly nonpartisan Court and map-drawer found a way to make every single suburban district in the Philly suburbs blue leaning.  They cracked and packed Republican voters in a way the 2011 GOP legislature would have been proud of.  While the court never said fairness or partisanship was in an issue the decisions they made clearly indicate it was so from helping shore up the 6th’s population by “Democrats on the court chose to leave Chester intact; to make up the difference, they added in the most Democratic parts of Berks County, shifting the new 6th district firmly into Democratic territory,” to “the 10th district, needing to add population beyond Dauphin County, reaches into the bluest suburbs of Harrisburg in Cumberland County and sends a tentacle down into York County to find the only Democratic areas in that heavily Republican county. Combining Scranton and Wilkes-Barre in the new 8th district, something previous legislatures of either party almost never did, also aims at making that district more Democratic. The line between the 1st and 4th districts was shifted from that between their predecessors to ensure that enough Democrats are roped into the Bucks County-based 1st to negate the Republican advantage in that county, but not so many as to make the more Democratic Montgomery County-based 4th a true swing district. Allegheny County could have been divided neatly, but the pattern of Democratic-leaning suburbs of Pittsburgh meant that a more Democrat-friendly map involved the 18th district being shaped like the Wu-Tang symbol.”

The reason why the Supreme Court ruled the way it did in Vieth was because it wanted to avoid these clearly political issues.  And while the GOP appeal is unlikely to get federal courts to overturn a state decision the Supreme Court’s hand might be stayed in Wisconsin and Maryland on what happened in Pennsylvania.  Do we now want statewide judicial elections to be based purely on partisanship because this will fuel the trend?  Further, if courts get more involved in the political process how can anybody tell a voter they are nonpartisan and should be trusted?  You can’t.

What Are Fair Standards and When Does A Map Cross The Line?

Racial gerrymandering has long been an issue the courts are willing to take up largely because the Voting Rights Act clearly governs and precludes it unless the government can present a compelling interest in for racially gerrymandering.  But, partisan gerrymandering is something clearly different and undefined.  Just look at the examples of North Carolina and Texas.  The Supreme Court has refused to overturn the rulings of two district courts the states engaged in racial gerrymandering in the drawing of some Congressional lines.  But, it has refused to overturn the partisan redrawing of several legislative districts in North Carolina (in 2017) or overturn Texas’s current legislative lines.

Part of this might be due to the fact the Court is currently examining two political gerrymandering cases.  The first, and by default the largest is Gill vs. Whitford, in Wisconsin.  A group of Democratic voters allege their rights to elect Democrats (right to free assembly) are being infringed upon by political gerrymandering.  To back this up, several political scientists gave data driven analysis and graphs showing how the state’s legislative election results did not correlate with the Presidential results.  By a lot!

The second case is more limited in its impact on the nation but involves Maryland’s political lines where it is Republicans alleging bias.  In Benisek vs. Lamone the Court agreed to hear whether it is okay for a state to discriminate against a particular group of voters in a single district (cracking and packing essentially).  In Maryland, Democrats succeeded in breaking up a suburban GOP district by distributing its voters in several outlying Democratic districts.

But, for all the technology that goes into gerrymandering and the hubaloo it causes in partisan debates on Facebook is there really a good way to gauge whether the results are mostly due to partisan redistricting?  Many states have now created requirements districts be compact, contiguous and try to keep communities of interest together.  All are well and good.  But, none of those rules necessarily mitigate or have an impact on partisan gerrymandering.

By their nature, courts are not equipped to manage such cases.  Justices are supposed to be impartial and consider the facts.  The saying the “law is blind” is applicable here.  But, politics is certainly not blind.  So how can a court interpret a clearly political process?  Moreso, how can they draw a political map and say it should be fair in a process where fairness (politics) is certainly not where it works?  The disconnect is stunning.

Maybe Democrats will get their wish in Gill.  Maybe they won’t.  But, the Supreme Court should be extremely weary of adopting a single standard for gerrymandering based on the “efficiency gap (number of wasted votes) or some other method.  As the chart below shows past Pennsylvania election results, even the best gerrymandering can easily be undone by external political events.

Year	Percent R vote	Percent R seats
2002	57.14%	63.16%
2004	50.60%	63.16%
2006	43.73%	42.11%
2008	43.99%	36.84%
2010	51.94%	63.16%
2012	49.24%	72.22%
2014	55.54%	72.22%
2016	54.06%	72.22%

There is the case of Wisconsin’s 10th senate district which ironically might have saved the nation from having the Supreme Court litigate every complaint.  A district that was a supposed GOP gerrymander flipped to Democrats earlier this year by 10 points.  This reinforces the idea no amount of gerrymandering can make up for shifting voters, demographics and external events.  If the gerrymander was insurmountable why did this district just record a thirty point flip from the Presidential to legislative level?

Ultimately, taking the results in aggregate can make a map seem gerrymandered far more than it is.  Proponents of overturning gerrymandering want unelected courts and Commissions not to acknowledge the strength of individual candidates and the stances they take on issues.  Far easier to argue a map is gerrymandered because you cannot win.  If the Supreme Court buys this argument other courts will do the same and we will see what we saw in Pennsylvania last month again and again.

Democrats are not making bones about the fact they will urge their partisans to the polls in Wisconsin, Michigan and Ohio if only to swing the state’s partisan supreme court seats to their side.  Does the Supreme Court want local courts to have an even easier time getting involved in a political process?  As bad as gerrymandering is, it is not as bad as that.