Redistricting shapes the power of political parties. When states redraw their electoral maps every 10 years, they alter the relative power of parties by changing the partisan makeup of each district. And when states engage in gerrymandering by creating districts with the intent of reducing the electoral weight of certain categories of voters, we should be even more concerned.
The U.S. Supreme Court heard oral arguments for a particularly important redistricting case on October 3. In this case, Gill v. Whitford, the Court addressed the legality of gerrymandering for partisan purposes. To answer these questions, the Court must resolve how lower courts can and should approach the use of scientific and statistical expertise regarding partisan gerrymandering.
Recent advances in computer-aided redistricting, fueled by “big data,” have raised the stakes for the court. Traditional districting principles such as compactness and respect for political boundaries can provide only a token check on the increasingly automated pursuit of maximal partisan advantage. By ruling in favor of the plaintiffs, the court could constrain partisanship in the redistricting process and require that elections officials give weight to nonpartisan scientific and statistical expertise. Indeed, it could use this case as a vehicle to define the legal standards governing redistricting nationwide in future elections.
If the court rules against the plaintiffs, however, it would allow elections officials to interject partisan considerations into the redistricting process virtually unimpeded, weakening the relationship between political participation and election results and overriding the compelling research findings of nonpartisan experts.
We are part of a group of 44 scholars of election law, scientific evidence and empirical legal methods at U.S. law schools and universities who weighed in as amici on this case. We argued that the court should defer to the trial court’s determination that the Wisconsin Republicans unjustifiably used the redistricting process to entrench themselves in power through 2020.
We supported the plaintiffs because we found the trial court’s reasoning to be methodologically sound and backed by the relevant statistical evidence regarding the quantitative effects of partisan bias from the drafting process to the 2012 and 2014 elections and through the end of the decade. The Supreme Court should reach the same conclusion, especially after customarily according wide deference to the district court’s weighing of statistical evidence.
Our brief should give the Supreme Court pause before reversing the lower court’s ruling. It would be the height of anti-intellectualism to dismiss the trial court’s careful review of the scientific evidence as “sociological gobbledygook,” as Chief Justice John Roberts suggested at the oral argument. If the court nevertheless chooses this course, the only avenue left will be the voting booth. Those of us who desire fairer and more scientifically based districting must do whatever we can to shape our electoral system at the ballot box, mindful that the bodies that design legislative districts are either primarily or indirectly determined by elected officials.
As of August 2017, 37 state legislatures, including North Carolina, control Congressional and state legislative redistricting. In these states, voters can shape the process of redistricting by electing legislators who approach redistricting with values of accountability and regard for expertise.
Politician commissions composed of elected officials determine congressional redistricting in two states and state legislative districting in seven states. In these states, voters can shape the process of redistricting by electing officials they view as supporting their values.
Finally, independent commissions, composed of officials appointed through a bipartisan process, determine congressional redistricting in four states and state legislative districting in six states. But elected officials, including state governors, senators and congressional representatives still appoint various members of these commissions. So even in these states, voters can affect the ways in which redistricting is conducted in their states. (The remaining seven states consist of only one congressional district.)
We recognize that the voting hurdles are high, and that these hurdles are ones that the court should consider strongly. But having asked the Supreme Court to render an opinion that will support sound scientific and democratic principles, we now ask you to do the same when you vote. We will.
Andrew Chin is a Professor of Law at the University of North Carolina School of Law. Steph Tai is an Associate Professor of Law at the University of Wisconsin Law School. Their Amicus brief on the Wisoncsin case can be found here.