The Supreme Court agreed on Monday to take on a case that could have huge longterm implications for voters across the country—especially in states where control of state legislatures and congressional districts belongs to parties who don’t actually represent the majority of the state’s voters.
For the first time in more than a decade, the justices have agreed to examine the constitutionality of political gerrymandering—that is, how far state legislators can go when they draw districts along deliberately partisan lines.
That’s what a panel of federal judges say happened in Wisconsin during the 2012 elections. The electoral map was drawn in such a way that, even though Republicans won fewer than half of the votes cast in state elections, they still captured a 60-to-39 seat advantage in the State Assembly.
A three-judge panel ruled back in November that such a result could only have come from an electoral map that was unconstitutionally gerrymandered. Now, the Supreme Court will review the lower court’s decision.
For decades, the Supreme Court has ruled that it’s illegal to gerrymander districts in a way that discriminates against voters from certain racial groups. But they’ve never been able to decide if it’s illegal to gerrymander districts to benefit one political party.
In many places, those two issues are difficult to separate, since black and Latinx voters in most states overwhelmingly vote for Democrats. Justice Elena Kagan acknowledged as much last month in a different case about illegal race-based gerrymandering in North Carolina.
And partisan gerrymandering is a problem that any state can face, regardless of that state’s demographics. Wisconsin, where more than 86 percent of eligible voters are white, serves as a good example. A decision upholding the lower court’s ruling would impact everyone, both the increasingly diverse population of voting-age adults and the parts of the country that remain stubbornly white.
As it currently stands, Republicans have the most to lose from a decision that strikes down Wisconsin’s districts, because they overwhelmingly dominate state legislatures. In 24 states, they control both chambers of the state’s legislature and hold the governor’s office. The Democrats, by comparison, control just six.
Control over state legislatures matters hugely when it comes time to redraw congressional and state district lines every 10 years, because in the majority of states, the members of the legislature control that process. In other words, if a party can take control of a state legislature during a redistricting year, that’s the best way to ensure the party maintains that control.
The justices have tried to address the constitutional limits of partisan gerrymandering before. But in 2004, they couldn’t agree on the right way to determine “when normal political instincts such as protecting your own turned into an unconstitutional dilution of someone else’s vote,” as Robert Barnes writes in The Washington Post.
The Wisconsin case is already proving contentious. Less than two hours after announcing they’d take the case, the justices split 5–4 in favor of letting the state’s electoral map remain unchanged until they’ve had time to issue a ruling.
The four members of the court’s liberal wing—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kaga—noted that they would have upheld the lower court’s order that the maps should be changed even as the justices come to a conclusion.
There’s still no guarantee that the justices will take any definitive action on the constitutionality of partisan gerrymandering. They’ll hear the case sometime in the new term, which begins in October, but might end up dismissing the case on jurisdictional grounds.
Over the course of the last few years, courts across the country have issued a flurry of rulings combatting gerrymandering, voter ID laws, and other mechanisms for manipulating election outcomes.
In May, the Supreme Court ruled that North Carolina had violated the Constitution by packing black voters too tightly into just a few districts, diluting their voting power.
And last year, a federal court ruled that North Carolina’s Republican-led legislature had intentionally tried to further limit black voters’ influence by passing a host of voting restrictions.
“The new provisions target African Americans with almost surgical precision,” Judge Dianna Gribbon Motz wrote at the time.
Some of the Republicans’ actions—like eliminating polling hours on Sundays, when black people were more likely to vote—were “what comes as close to a smoking gun as we are likely to see in modern times,” she added.
More recently, another federal court blocked Kansas, Alabama, and Georgia from requiring that potential voters provide proof of citizenship on federal mail-in voter registration forms. In Kansas, where the law was most rigidly enforced, “the requirement disproportionately impacted people under 30, the elderly, and those living in urban areas,” NPR reported.