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The U.S. Supreme Court hears arguments today in a case with the potential to radically reorder politics in America. At issue is the practice of partisan gerrymandering. This is drawing state legislative and congressional district lines to maximize and perpetuate the power of the incumbent party. The question for the justices is whether there is any constitutional limit to leveraging that partisan advantage. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Partisan gerrymandering is a practice that goes back to the early years of the republic. Since then, politicians from both parties have practiced, announced and embraced it as a way to leverage their power. In 2004, the Supreme Court, by a 5-to-4 vote, refused to outlaw even extreme partisan gerrymandering. But the fifth and decisive vote was cast by Justice Anthony Kennedy, who left the door open to revisiting the issue if a manageable test could be found for evaluating how much partisanship is too much.
Today, the issue is back in a case from Wisconsin where Republicans in 2011 controlled both the legislature and the governorship in a redistricting year for the first time in four decades. That presented a unique opportunity for consolidating their power. Working in secret, they drew new district lines that would solidify their control for at least the rest of the decade. The plan they adopted was amazingly effective. In the next year's election, Republicans got less than half the statewide vote, 48.6 percent.
But as they had privately predicted, they still won close to two-thirds of the seats in the state assembly, a 60-to-39 seat majority. The tools they used were not new. They packed large concentrations of Democratic voters into a few districts. Then they spread out the remaining Democrats into districts where they would be clearly outnumbered. A divided federal court found that while these techniques were not new, something else was. High-Speed computer technology able to spit out thousands of alternative maps that combined with new kinds of voter data predicted outcomes with uncanny accuracy.
Keith Gaddie, an elections expert from the University of Oklahoma, was a consultant for the GOP in Wisconsin. He emphasizes that he did not draw any maps himself. What he did was create ways to run thousands of simulations and give the resulting data to those who were drawing the maps.
KEITH GADDIE: They don't ask, is this fair? They just ask, what does this do?
TOTENBERG: Lawyers for the state say there are reasons for Wisconsin's disparity that are not partisan. Paul Clement represents the GOP legislative leadership.
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PAUL CLEMENT: It is a political fact that Democratic voters tend to be relatively concentrated in urban areas and that Republican voters are relatively dispersed in rural areas.
TOTENBERG: Wisconsin's solicitor general Misha Tseytlin adds pointedly...
MISHA TSEYTLIN: It is undisputed that Wisconsin's map here complies with all traditional district criteria.
TOTENBERG: But the University of Michigan's Jowei Chen, an expert on geography and gerrymandering, has a different take. After running some 200 potential redistricting maps, he concluded that the state's demographic geography accounts for an edge of only 1 to 3 seats for Republicans, with aggressively partisan gerrymandering that splits counties and even municipalities accounting for the rest.
JOWEI CHEN: To quantify that, it's about 10 to 15 seats on top of what should naturally occur just given Wisconsin's voter geography.
TOTENBERG: The question before the Supreme Court today is whether such partisanship in gerrymandering is so extreme as to be unconstitutional. Does it deny citizens the equal protection of the law? Does it deny Democratic voters their First Amendment right of free speech and association by making their votes less valuable? And ultimately, is that something a court can accurately measure?
Lawyer Paul Smith of the Campaign Legal Center will tell the justices the time has come for the court to act.
PAUL SMITH: There are now tests that were employed here to allow the courts to figure out what are the really bad gerrymanders?
TOTENBERG: Those tests vary. One is a mathematical formula for measuring when districts are drawn to over concentrate voters of one party but not the other. There is also a broader and more conventional test for evaluating the degree of partisan redistricting, a test used by the lower federal court that first ruled in this case. Was there discriminatory intent in drawing the districts? Does the plan have a durable effect? Will it entrench the incumbents and their party majority?
And is there a neutral explanation for the way the lines are drawn? Again, Paul Smith.
SMITH: When you have those three conditions, there ought to be a remedy because what you have then is a sham of democracy.
TOTENBERG: Election experts, including Keith Gaddie, who helped the GOP develop its plan in Wisconsin, have filed briefs saying the technology now exists to answer these questions. But there are some experts who are not sure. Among them, Princeton University's Nolan McCarty, who did not file a brief.
NOLAN MCCARTY: I'm not saying that the Supreme Court shouldn't establish a principal against partisan gerrymandering, but I think it's going to be very hard to adjudicate in specific cases.
TOTENBERG: Looking at the 53 briefs filed in the case by interested groups and individuals, it's striking how many Republicans, including current and former U.S. senators, governors and state legislators, have weighed in on one side. They are urging the Supreme Court to act now to at least limit a system of partisan gerrymandering that they say has grown so exponentially that it poses a threat to democracy. Among them is the always blunt former assistant Republican leader of the U.S. Senate Alan Simpson of Wyoming.
ALAN SIMPSON: It poisons the system, and it stinks.
TOTENBERG: Less colorful but equally firm is Republican Dale Schultz, who for 32 years, served in the Wisconsin Legislature, rising briefly to the position of GOP leader. Schultz voted for this redistricting plan but had second thoughts when he realized the enormity of the advantage it created for his party.
DALE SCHULTZ: Over the years, we've allowed technology and gerrymandering to sort of rob the people of the power of their vote. And right now the process creates a situation where legislators are picking their constituents rather than constituents picking their legislators.
TOTENBERG: Wisconsin's Solicitor General Tseytlin, however, has a cautionary observation.
TSEYTLIN: Not everything that one thinks is a bad idea is unconstitutional.
TOTENBERG: A decision in the case is expected later in the Supreme Court term. Nina Totenberg, NPR News, Washington.
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