When a group of Michigan voters filed a complaint in December over partisan gerrymandering, it brought to seven the number of such challenges filed since 2016 and fueled hope that the U.S. Supreme Court will not only agree the practice is unconstitutional but also offer guidance for how to draw district lines.
Starting in 1986 when Indiana Democrats carried their complaint to the Supreme Court in Davis v. Bandemer, 478 U.S. 109 (1986), a slim majority of the nine justices have consistently declined to offer a ruling. They maintained that drawing district maps in a manner that dilutes a party’s own vote is a matter to be resolved by the legislative branch and not the courts.
However, the case from Wisconsin, Gill v. Whitford, 16-1161, has sparked another push against partisan gerrymandering and inspired a rash of likeminded complaints in other states. The Supreme Court heard oral arguments in Whitford in October and added the case from Maryland, Benisek v. Lamone, 17-333, to this term’s docket. Arguments in that dispute are set for March 28.
Yeager and his team at Faegre had been working on the case from Michigan for a couple of years, examining the data and finding stark disproportionality between the number of votes versus the number of seats. An example of their analysis, included in the complaint, shows Republicans have won between 46 percent and 51 percent of the popular vote since 2012 yet occupied 64 percent of the Congressional seats.
The parties controlling statehouses are turning to data and algorithms when drawing district maps. More than giving their candidates an advantage, these districts have a durability that will enable them to remain in power even if the voters in the districts swing 1 percentage point or even 3 percentage points to the other party.
Yeager said the minority party overcoming that kind of tilt would be “extraordinarily difficult.”