AUSTIN — Partisan gerrymandering — molding electoral maps to give the majority party an edge over opponents — has long been a fact of American political life, but the practice faces a U.S. Supreme Court challenge this week.
“If the justices decide that partisan gerrymandering is unconstitutional, that’s going to have wide-ranging effects on every state, including Texas,” said D. Theodore Rave, a University of Houston Law Center professor. “That opens up a whole can of worms.”
Texas’ attorney general, “has a vested interest in protecting the state’s power to engage in gerrymandering,” said Stephen Vladeck, a University of Texas School of Law professor, and has, along with other states’ attorneys general filed briefs in Gill v. Whitford, which is slated for oral arguments on Tuesday.
The case arose in Wisconsin, where challengers argue that Republican lawmakers unconstitutionally thwarted opponents in crafting its legislative districts.
“The challengers argue that the redistricting plan would allow Republicans to cement control of the state’s legislature for years to come, even if popular support for the party wanes …” legal analyst Amy Howe wrote in the SCOTUSblog. “By contrast, the state of Wisconsin counters that if the lower court’s decision is allowed to stand, it will open the door to ‘unprecedented intervention in the American political process.’”
Vladeck said that while partisan gerrymandering has played a role in U.S. elections since the 19th century, access to better data has given politicians the ability to carve and create favorable districts in a “more shameless” fashion than heretofore.
Henry Flores, a St. Mary’s University political scientist, said that in San Antonio, gerrymandering keeps voters who don’t think their candidate has a chance to win because of the way districts are drawn away from the ballot box.
“It has restricted the right of voting for a lot of people,” Flores said. “My wife has already decided she’s not going to vote any more.”
Luis Roberto Vera Jr., national general counsel for the League of United Latin American Citizens, said intervention is long overdue in states such as Texas where both major parties have worked to protect their incumbents by undercutting minority participation in elections.
“When the Democrats were in charge of Texas for 115 years, they screwed the Latinos every which way they could,” Vera said. “Republicans talk out of both sides of their mouths.
“They say they’re going after Democrats. We know they’re going after Latinos and blacks.”
The court has held racial gerrymandering illegal, and recently upheld a challenge to North Carolina electoral maps that watered down African-American votes.
But the justices have shied away from wading into partisan gerrymandering, mainly for lack of a “manageable standard” to define it, Rave said.
“The challengers seemingly agree … that a key question in the dispute now before the Supreme Court is whether there is an identifiable and manageable test for partisan gerrymandering,” Howe wrote. “But the answer to that question, they counter, is yes.”
That proposed standard is something proponents call the “efficiency gap.”
“The efficiency gap counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats,” according to the Brennan Center for Justice.
Rave said it’s a way of looking at the way votes translate into seats.
Understanding the gap is complex but it could give the court a way to measure partisan gerrymandering for the first time.
The experts were unwilling to prognosticate on the outcome of the case, but there was consensus on one issue: calling it a potential game changer understates its importance.
“Control of the (Texas) House that would be the biggest change,” here, University of Houston political scientist Brandon Rottinghaus said. “The Senate, too, depending on how they draw the lines.”
In short, a Texas-size political earthquake.
“A good one,” Vladeck said, “whether you’re a Republican or a Democrat.”
John Austin covers the Texas Statehouse for CNHI’s newspapers and websites. Reach him at email@example.com.