“Gerrymandering is distasteful,” said Justice Alito yesterday, “but if we’re going to impose a standard on the courts it’s going to have to be manageable.” Starting Tuesday, the Supreme Court began hearing a case on gerrymandering that could finally impose a manageable standard.
After partisan redistricting in Wisconsin, Republicans won 60 of their state legislature’s 99 seats—even though they won only 49% of the vote. Despite the unfairness of such outcomes, the Supreme Court has previously refused to strike down gerrymandered districts for practical reasons. Justice Kennedy said there was no “workable standard” to judge fairness. While that may have been true in 2004, it is no longer true now.
The case before the Supreme Court offers the workable standard of the “efficiency gap,” the difference between the number of votes wasted for each party due to the packing of lopsided districts. States with an efficiency gap greater than 7% would cross that new legal threshold. Wisconsin’s gap is 13%. That’s why a federal District Court concluded last year that the state had violated the Constitution, resulting in the case moving up to the Supreme Court now.
Virginia is worse. Our efficiency gap was 16% in 2013. As a result, Republicans currently hold 66 of our legislature’s 100 seats. Non-gerrymandered districts would give Republicans only 55 seats. How can Republicans hold a near super-majority in a state that voted for Hillary Clinton over Donald Trump by a 5.5% margin?
Virginia has already run afoul of the Supreme Court. Until last year, 8 of our 11 U.S. House districts were held by Republicans. That ended when the Supreme Court struck down one of our districts as racially gerrymandered. As a result of the remapping, currently 7 of our 11 Representatives are Republicans—a figure still out of sync with Virginia’s voters. If the Court adopts a standard for partisan gerrymandering too, all of our Republican-drawn districts will be struck down.
When a panel of federal judges rejected Virginia’s gerrymandered 3rd district map, you were one of the first to lead an appeal: “We did not agree with the decision so we felt it was absolutely appropriate to appeal. We thought the General Assembly followed the law.”
You got your wish, and the Supreme Court rejected your argument. You complained afterwards: “Today’s decision by the Supreme Court does not address the fundamentally flawed ruling of the divided three-judge court, but deals solely with whether Virginia’s Members of Congress had standing to bring this appeal. While the decision ends this case, nothing has changed for future districting actions elsewhere in the United States.”
Based on Justice Kennedy’s pointed questioning of Republican lawyers yesterday, the Court may be leaning toward such a change, one that would improve districting across the United States. In Virginia, it would result in at least another of your colleagues losing a House seat. Even Bush-appointed Justice Alito called gerrymandering “distasteful” yesterday. Do you agree or would you still call the practice “absolutely appropriate”? More importantly, how do you stand on the current Wisconsin case and the proposed 7% efficiency gap standard for judging unfairness?