Supreme Court Considering Whether To Limit The 'Business Of Rigging Elections'

Author:Mr Ryan H. Niland
Profession:Womble Bond Dickinson

On January 27, 1998, the Winston-Salem Journal featured an article discussing the lack of competitive Congressional races in North Carolina. John Hoeffel, Six Incumbents Are a Week Away From Easy Election, Winston-Salem Journal, Jan. 27, 1998, at B1. The article noted that more than half of North Carolina's incumbent representatives were currently running unopposed in the upcoming election. Id. "You have virtually no competition anywhere across the state," observed State Senator Mark McDaniel. Id. McDaniel, who had voted against the General Assembly's latest redistricting plan, complained that the General Assembly was "in the business of rigging elections." Id.

Gerrymandering has a long and colorful history in the United States. Most observers agree that partisan gerrymandering is, as Justice Alito recently observed, "distasteful." But although federal courts have long limited the states' ability to draw district lines in ways that disadvantage racial groups, they have been hesitant to limit the states' ability to fashion districts that advantage one political party over another.

A case currently pending before the Supreme Court could test the limits of that deference. Gil v. Whitford involves a challenge to Wisconsin's state legislative maps, under which Republicans have won more seats than their overall share of the statewide vote would suggest. For example, Republican candidates won 60 of the state's 99 Assembly seats in 2012 despite receiving 48.6% of the statewide vote. See Whitford v. Gil, 218 F. Supp. 3d 837, 853 (W.D. Wis. 2016). The Court's decision in Gil could set a new standard for evaluating partisan gerrymander claims and have a significant impact on American politics.

Background on Gerrymandering Claims

In the United States, the practice of manipulating district lines to promote a desired electoral outcome is nearly as old as the Constitution itself. Patrick Henry reportedly drew Virginia's district lines in an unsuccessful effort to keep James Madison out of the first United States Congress. The word "gerrymander" was coined in 1812 after Massachusetts Governor Elbridge Gerry approved a salamander-shaped district that was drawn to benefit his party. In light of this historical pedigree and federalism concerns, federal courts have generally been reluctant to impose limitations on a state's ability to fashion its own legislative maps.

In the mid-twentieth century, however, the Supreme Court began to recognize some restrictions on a state's...

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