2 – Take Home Essay


            In early October, the Supreme Court
of the United States heard argument in the case of Gill v. Whitford. The case
was filed on July 8, 2015 by the Campaign Legal Center (CLC) representing
twelve registered Democrat citizens against the Wisconsin state board of
elections. This case revolves around the practice of Gerrymandering and whether
and when such a practice violates the Constitution. In 2011, Republicans in the
Wisconsin legislature drew the district map in a way that allowed the party to
maintain political control in the State Assembly without accumulating a
majority of votes. In the state elections of 2014, Republicans captured 60 of
the 99 seats in the Assembly while only securing 48.6% of votes (Vock, 2017). The plaintiffs
argued that the Republican drawn map of 2011 created a discriminatory
environment wherein not only did Democrat individuals feel that their votes did
not carry weight equal to republican votes but that the weight of Democrat
votes were intentionally diminished as a strategy by republicans to maintain
legislative control despite their falling polling numbers.  The fact that 60% of the Assembly seats were
secured with less than half the votes appears to directly support the claim of inequality.

In response to changing populations and
demographics, states are required to redraw their congressional and state district
maps following each decade’s census to ensure the equal representation of all
constituents. It has already been ruled on numerous occasions that
gerrymandering these maps in a manner that dilutes or reduces the impact of
people’s votes based on racial or ethnic criteria is fundamentally
unconstitutional. This case is different in that the defendants are accused of
drawing the map in a manner that discriminates against individuals based on
their political affiliation. Each party is motivated out of their own
self-interest to grab and hold onto political power. Republicans are not the
only group to have drawn district maps to benefit themselves; Democrats operate
similarly given the opportunity to do so. The motivation to maintain power is
not necessarily evil. Each party and its members believe that their ideology
and agenda are the best strategies for the country and will take measures to
ensure that their plans are not impugned. Combining this perspective with the
constitutional necessity to adjust political boundaries as populations change
and develop creates the perverse incentive for legislators to push the
boundaries of what is legal and constitutional.

Geographical demographics and institutional
overlap have also increased the level of complexity in this case. This
complexity has been the primary reason cited by the court for abstaining from
the debate over gerrymandering. “Finding a test that courts could use to
determine when political favoritism had become too great — the ‘Rosetta Stone,’
[Justice] Alito called it — has always been the hurdle. [Justice] Kennedy said
as much the last time the court examined the issue, in 2004” (Barnes, 2017). The use of technology to quantify and
organize the massive amounts of data have been cited as the key for discovering
this measurement. Finding an appropriate measure to determine if partisan
gerrymandering infringes on constitutional rights is paramount to the court’s
ability to operate without prejudice. For example, if one measurement
emphasizes the fact that 80% of blacks lean Democrat (Pew Research Center, 2015) without accounting
for their factual geographical distribution, members’ genders, generations, and
education, the measurement’s reliability is diminished.

Political operatives and constituents are not
the only stakeholders in this dilemma. The Supreme Court, itself, has
motivations for hearing the case. As an institutional rule, the Supreme Court
seeks to remain as apolitical as possible. The effects of decades of partisan
appointments is clearly visible in the makeup of the court which is rather
clearly divided into two factions representing liberal and conservative
perspectives. However, despite the apparent process of polarizing the court, it
is still resistant to politicizing itself through the cases which it hears. Past
cases that have dealt with gerrymandering have been described as “disastrous
intrusion into the domain of legislators — a ‘political thicket’ that would
inevitably politicize the court” (Wines, 2017).
Regardless of the variance in opinion over the politicizing of the Supreme
Court, it was decided that this case presented enough of a conundrum for

Another factor to be considered is the
strength of institutions. Gerrymandering began
in the early years of the republic and has been a source of controversy and
criticism throughout American history (Mann, 2016).
The practice of gerrymandering was embedded in the norms of the American
legislature during its most formative period, and through the decades since has
maintained legitimacy. The practice of gerrymandering is so strongly embedded
in the institution of the US legislature that only another institution with
equivalent legal power, such as the Supreme Court, can expect to alter its
prominence and usage. While institutions cannot effectively constrain the
motivations of individuals, groups, and other institutions without steadfast
rules and authority, it is essential to preserve complementary institutions
with similarly strong rules and authority to maintain the balance of power.