The US Supreme Court is trying to disentangle the roles of race and partisanship when drawing congressional district maps. Credit:New York Times Lawyers and academics now believe they have devised a standard Kennedy can accept. They'll spend the northern summer honing their briefs, along with an army of "friends of the court" who'll be for and against any reform, and there'll be oral argument in October - on which more later. First we must confront the existing reality. A democracy that holds itself up as a shining example to the world, that "city on a hill" invoked by John F. Kennedy and Ronald Reagan, tolerates the effective disenfranchisement of millions of voters and the stealing of dozens of congressional seats at every election by whichever party wins control of the political process at state level. It's called gerrymandering, after an 1812 redistricting effort by then Massachusetts governor Elbridge Gerry, whose map-bending produced a district shaped like a salamander.

John Steinbrink, a farmer and Democrat in the Wisconsin State Assembly for 17 years, lost office when a Republican-led redistricting separated him from his longtime voters. "I could have moved to Kenosha, but I don't know how you farm in the city," he said. Credit:New York Times But one of the so-called Founding Fathers did it first. In 1788, before there was a Congress, independence hero Patrick Henry had boundaries altered in colonial Virginia in a bid to thwart James Madison, his rival and later the fourth US president. Today's gerrymandering ruthlessly harnesses technology and big data to "pack" and "crack" voters in districts as bent and twisted as the names bestowed on them: "Goofy kicking Donald Duck" [Pennsylvania's 7th Congressional district]; the upside-down elephant [Texas' 35th]; the Latin earmuffs [Illinois' 4th]; Bart Simpson holding a fishing pole [Michigan's 14th]; and the praying mantis [Maryland's 3rd]. "Goofy kicking Donald Duck": Pennsylvania's 7th district. Credit:Google Ideally, all votes should have equal weight. But when "packed", electors of a particular persuasion are piled into one electorate so as not to dilute the majorities of the opposing party in adjoining seats. If "cracked", they are sprinkled among voters of the opposing party in numbers which ensure their candidate never wins.

Florida's 5th district, into which non-white voters are "packed", narrows at one point to cross a bridge – lest the GOP majorities in the adjoining 3rd and 6th districts be diluted. "The Latin earmuffs": Illinois' 4th congressional district. Credit:Google Michigan's GOP-drawn districts are so gerrymandered that only 21 of the state's 148 legislative seats are truly competitive – that is, they were won by less than five points. Ohio usually is split about 50-50 in presidential polls, but the boundaries have been drawn to give Republicans 12 of the state's 16 seats. The impact on American democracy is staggering. At the 2016 elections, the average winning margin for seats in Congress was more than 37 per cent. Only 17 of 435 seats were decided competitively – which is to say by less than five points. "The praying mantis": Maryland's 3rd district. Credit:Google

This process has its own coarse and colourful jargon: the objective is to "ratf---" your opponent; creating new boundaries that put two legislators from one party into a single seat, forcing one to quit, is called "scorpions in a bottle". The Supreme Court has visited the issue of partisan gerrymandering on at least three occasions – in 1986, 2004 and 2006 – variously branding the practice illegitimate; seriously harmful; incompatible with democratic principles; and a "manipulation of the electorate". "Bart Simpson fishing": Michigan's 14th district. Credit:Google Yet the court has never ruled against it, though it has ordered that boundaries be redrawn when gerrymandering was found to be race-based. But its refusal to call out rigging along partisan lines has become a tool in the mapmakers' arsenal: defending the boundaries of its 12th district, North Carolina recently argued that it was legally helping Republicans, not illegally punishing blacks.

Law professor Nicholas Stephanopoulos has tried to create a standard by which to measure gerrymandering. Credit:New York Times A few states, including California and Arizona, have switched to independent redistricting commissions. Among the 10 most ugly redistricting efforts, eight are the handiwork of Republican state governments. The Democratic Party earns a place in the hall of shame for its current efforts in Maryland – and historically, for more rampant efforts from the 1960s through to the 1990s. In 2010, the GOP caught the Democrats resting on their laurels. In the wake of the so-called wave election in 2008, Barack Obama was in the White House; Democrats had majorities in the House and Senate; the party was in control of both chambers in 27 states and one chamber in each of another six states. Republican strategists devised a devilish plot. Karl Rove opted for no less than the op-ed page of The Wall Street Journal to reveal the thrust of what was to be known as the REDMAP Project.

Beneath a heading that read: "He who controls redistricting can control Congress", Rove explained that the 2010 census was about to be taken, necessitating a round of redistricting, and the GOP would focus on state legislatures in 2010 and in 2012 – flipping any they could to ensure mapmaking pencils would be in Republican hands. It was as black and white - or as red and blue - as that. In 2010, the Republicans gained almost 700 seats in state legislatures, enough to swing 20 chambers to their control. At the 2012 elections, Obama held the state of Pennsylvania by about 300,000 votes and Democrats outpolled Republicans there by almost 100,000 votes – but of the state's 18 congressional seats, 13 were won by Republicans. And in the 2014 midterm elections, redistricting delivered Democrats their worst defeat in more than 70 years.

So what can the Supreme Court do about all this? Its decision to review the constitutionality of the Republicans' approach to district boundaries in Wisconsin could revolutionise electoral politics and rob Republicans of their advantage in the aftermath of the 2020 census. On gaining full control of the Wisconsin legislature for the first time in decades in 2010, the GOP rejigged district boundaries in such a way that on winning just 48.6 per cent of the vote, the party walked away with 60 of the 90 State Assembly seats; and at the next elections, they picked up 52 per cent of the vote but bagged 63 seats. The maps, a lower appeal court found, were "designed to make it more difficult for Democrats ... to translate their votes into seats". Or as Princeton professor Samuel Wang told Fairfax Media, they were proof again that legislative 'foxes' were being allowed to design electoral 'henhouses'. New York University constitutional law professor Richard Pildes is disturbed by the seeming indifference of many Americans to such an open scam. But Pildes offers two explanations, based on feedback from his speaking engagements: "There's a major distrust of any body that is relatively independent, and the American culture of democratic participation leads many to believe we're better off with people who can be voted out of office doing the redistricting."

At the Brennan Centre for Justice, counsel Michael Li fears an all-out redistricting war after the 2020 census. "Globally, no other country leaves redistricting in the hands of self-interested parties," he said. "And Wisconsin is particularly pernicious because of how it locks in such a disproportionate share of seats for one party. "The evidence is especially strong, in terms of emails and depositions on what people were trying to do – and there's reason to believe that [Justice] Kennedy is still the sweet vote." But American justice is a fickle business – often it's what is legal that is shocking, more than what is illegal. And Paul Smith, who will argue the Wisconsin case before the Supreme Court in October, is taking nothing for granted. "We've got to this point before – and lost," he told Fairfax Media.

Smith, vice-president for litigation and strategy at the Campaign Legal Center, argued the 2004 case that split the bench five ways. He frames the question for the court as finding a compromise somewhere between the 'wildly unrealistic' possibility of eliminating all politics and allowing 'a certain amount' of politics in the process. "There have never been five justices who will agree on where that line should be drawn ... but maybe now they'll be more willing to draw a line between 'troublesome' and the really bad stuff." The standard which backers of the case hope will find favour with Justice Kennedy is a complex equation called the Efficiency Gap (EG), that seeks to measure partisanship by tallying "wasted votes": those of Democrats "packed" into districts in numbers that exceed the number needed for a Democratic candidate to win. Based on the work of University of Chicago law professor Nicholas Stephanopoulos, the figures are massaged district by district to calculate the EG, which is measured as a percentage. Arguing that an EG in excess of 7 should be deemed unconstitutional, the Wisconsin EG was found to be 13.3 in 2012 and 9.6 in 2014.

A 2015 study that applied the formula nationally, found that over a 43-year period, one-third of all redistricting in 41 states exceeded the 7 per cent standard and that elections in 2012 and 2014 produced EGs exceeding 10 points in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island, Virginia, Wisconsin and Wyoming. Former Wisconsin state senate leaders Timothy Cullen, a Democrat, and Dale Schultz, a Republican, have joined the Wisconsin fight. In a jointly written op-ed in The Washington Post, they argue: "Fighting gerrymandering is about fighting abuse of power, no matter who does it. If our side wins the lawsuit, we will establish a principle that reins in not only Republicans in states such as Wisconsin and North Carolina but also Democrats in states such as Maryland and Illinois." So, all eyes will be on Justice Kennedy. This case is proceeding because of the glimmer of light he shined on the redistricting scandal back in 2004. But now some are wondering if he's swinging the other way. The court's decision this week to take the Wisconsin case was a political bombshell. But it came with a rider – it also allowed the disputed Wisconsin district maps to stand, which means they will be used for at least one more cycle of elections.

Loading And who signed off on that little wrinkle? No surprise that the court's four reliable conservatives were on board – justices John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch. And the fifth? Ah yes – that was Justice Anthony Kennedy.