Wisconsin Gerrymander Struck Down

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As you might recall, I’ve been keeping a close eye on a Maryland redistricting case that went to the Supreme Court last year. When it was decided in favor of the claimant just under a year ago, I had this to say:

You hear that ringing noise in the distance? That’s the death knell for Maryland’s 2011 redistricting plan. It just got a whole lot louder this morning – let’s watch and see what happens. This was a big first step in the right direction, not just for Maryland but for the entire country.

Well, today we heard some more bells ringing the same tune, but they weren’t in Maryland. For the first time ever, a federal court has struck down a redistricting scheme as an unconstitutional political gerrymander, in this case in Wisconsin. Slate has the details:

On Monday, a federal district court ruled that Wisconsin’s hyperpartisan gerrymander violates the U.S. Constitution. The three-judge panel’s 2–1 decision marks a turning point in the way the judiciary evaluates gerrymandering: Never before has a federal court invalidated a gerrymander for providing an unfair advantage to one political party. If the Supreme Court affirms the decision—and the ruling appears to be catered toward the idiosyncratic constitutional philosophies of Justice Anthony Kennedy, who could be the deciding vote—it will overhaul congressional maps across the country and fundamentally alter representation in the United States.

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The courts have struck down race-based gerrymanders as a violation of equal protection—but until now, they have consistently held that nakedly partisan gerrymanders do not by themselves pose a resolvable constitutional problem. That’s because of a muddled Supreme Court decision in 2004 called Vieth v. Jubelirer. In Vieth, five justices agreed that partisan gerrymanders are likely unconstitutional. But Justice Kennedy refused to actually strike them down. Kennedy wrote that extreme gerrymanders may unconstitutionally burden the “representational rights of voters,” but that there was not yet any “manageable standard” by which to assess whether a gerrymander ran afoul of the Constitution. He hoped such a standard might “emerge in the future,” leaving the door open to a future challenge.

That standard appears to have emerged. In an opinion written by Judge Kenneth Ripple, a Reagan appointee, the federal district court concluded that Wisconsin’s gerrymander violated voters’ right to freedom of association and equal protection under the First and Fourteenth Amendments. The Constitution prohibits a redistricting scheme, Ripple wrote, when it is intended to impede the effectiveness of a citizen’s vote based on her political affiliation; does, in practice, dilute that vote; and cannot be justified on other legitimate grounds.

This is a very big deal. The Wisconsin decision will go straight to the Supreme Court for review, and I’d bet the decision gets upheld. While it would obviously be great for the decision to come from the Maryland case, I’ll take it any esy we can find it right now. If we’re going to have any chance of taking back control of the House sometime in my lifetime, gerrymandering must be brought under control. This is a promising opportunity.

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