By Natalia Castro

The Supreme Court is prepared to hear another case on gerrymandering. While in recent history the courts have ruled against the practice of racial gerrymandering as unconstitutional, there have been repeated attempts to get the court to rule on partisan gerrymandering, the process of drawing districts to suit the political advantage of parties in power.

In Whitford v. Gill, the case the Supreme Court will be taking in October, a divided panel of three federal judges at the district court level ruled that Wisconsin’s Republican-led legislature in 2011 pushed a redistricting plan that allegedly violated the 14th Amendment’s equal protection clause by disenfranchising Democrats.

This gross misinterpretation of the 14th Amendment conflates legitimate claims of racial discrimination concerns with partisanship — because Democrats finally lost control of this particular state house at the same time the census was occurring.

The Supreme Court has repeatedly ruled on racial gerrymandering, in accordance with the Voting Rights Act of 1965, creating districts based on race is unconstitutional. In the 1993 Supreme Court case Shaw v. Reno, a 5-4 decision ruled that the one-person, one-vote principle is violated equally by the dilution of a vote as the absolute prohibition from cast a ballot. North Carolina’s creation of districts based on racial demographics, without regard for compactness, contiguousness, geographical boundaries, or political subdivisions, isolated black communities and was thus ruled unconstitutional.

Then-Justice Sandra Day O’Connor clarified the intent of the 14th Amendment in the court’s majority opinion, noting, “The Court held that such schemes violate the Fourteenth Amendment when they are adopted with a discriminatory purpose and have the effect of diluting minority voting strength…The Equal Protection Clause provides that ‘[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws’… Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race. Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition.”

That precedent was reaffirmed by the court as recently as 2017 in Cooper v. Harris, when the Supreme Court unanimous ruled that North Carolina once again used race as a predominant factor in drawing district lines. Again, the court sited the 14th Amendment’s Equal Protection Clause for their reasoning.

Whitford on the other hand is not making a racial claim at all about Wisconsin, he has a completely different argument. As the district court ruling explained, “Professor Whitford testified to his long-time affiliation with the Democratic Party. He related that he consistently has voted for Democratic candidates, has made donations to Democratic Assembly candidates outside of his own district, has raised money on their behalf, and has donated to the Assembly Democratic Campaign Committee. According to Professor Whitford, given Wisconsin’s caucus system, ‘[t]he only practical way to accomplish [his] policy objectives is to get a majority of the Democrats in the Assembly and the Senate,’ which is ‘virtually impossible under this apportionment [plan].’”

Whitford is claiming that as a Democrat, having a Republican majority allows them to draw districts to the GOP’s advantage, clearly misconstruing the intent of the 14th Amendment. In the 2004 case, Vieth v. Jubelirer, the Supreme Court ruled that while too much politicization of districts might be a problem, as the late Justice Antonin Scalia wrote in his case opinion, it was not a justiciable question.

Justice Scalia noted that partisan gerrymandering has existed since Pennsylvania was a colony, and considerable harms would have to be found for it to be ruled unconstitutional. As Justice Scalia explains, “It would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been denied its chance to effectively influence the political process as a whole, which could be achieved even without electing a candidate… in a challenge to an individual district the inquiry would focus on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate.”

Yet, 2010 was the first time in over 40 years Republicans even had a chance to take control of the districting map because they held a majority throughout the state government, and still Democrats were able to take control of the Wisconsin state Senate in 2012 after the redistricting. Hardly silencing Whitford at all.

This is not a case about disenfranchisement at all, it is a case about Democrats being angered by their loss in a major election.

In this case, Wisconsin state legislators did everything in their power to act legally while also tipping the scales to the right. In January 2011, Speaker of the Wisconsin Assembly and State Senate Majority Leader hired several law firms to assist in the redistricting. The groups complied “customized demographic data” to create a “composite partisan score” of different area units.

According to Wisconsin’s defendant brief, “the Legislature, through its staff, drew districts intending to comply with (and actually complying with) equal population, compactness, and other traditional principles, while also looking to the likely partisan makeup of potential districts. There is nothing unconstitutional about considering partisanship along with other districting factors.” How else would anyone expect partisan-composed legislature to act on districting?

While Whitford might think he is only trying to get Democrats elected, he is really playing with a much more delicate system. The 14th Amendment was originally meant to be a protection against disenfranchisement in racial instances, by expanding this to political opinion the courts are equating ethnicity with political opinions — a dangerous precedent.

Even worse, this would give federal courts authority over a constitutionally state-run issue when this was never intended. Article I, Section 4 of the Constitution explicitly places elections in the control of the state government. As long as there are no racial injustices occurring, removing a clear political authority given to state governments because it has gotten — political — is completely illogical.

One day, Democrats will gain full control of the state government in Wisconsin after a census and gerrymander districts in their favor, just as it took 40 years for Republicans to do. Until then, the left must not be allowed to use the courts and the 14th Amendment to abolish partisanship leaving it to courts to draw district maps — a can of worms the Supreme Court would do well to avoid.

Legislatures with a party system are supposed to act in partisan ways. Elections are supposed to matter. This has been going on since the beginning of American history and just because one side does not like the political outcomes of those elections including districting does not make it unconstitutional.

Natalia Castro is a contributing editor at Americans for Limited Government.