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At the U.S. Supreme Court today a case that could reshape American politics. At issue is whether there's a constitutional limit to the practice of partisan gerrymandering. That is drawing legislative and congressional district lines to benefit the party in power. As NPR legal affairs correspondent Nina Totenberg reports, the justices appeared closely divided.
NINA TOTENBERG, BYLINE: In 2011, Wisconsin Republicans completely controlled the redistricting process for the first time in four decades. A federal court later found that by using high-speed computer technology capable of spitting out thousands of alternative maps and combining those maps with new voter data, Republicans were able to draw new district lines to solidify their control of the legislature for at least the rest of the decade, if not longer.
Indeed, a year after the redistricting, Republicans captured only 48.6 percent of the statewide vote. But as they had privately predicted, they still won 60 of the 99 state legislative seats while the Democrats, who'd won a majority of the vote, captured a mere 39 seats. The Democrats then challenged the redistricting plan in court.
And when it got to the Supreme Court, they won the support of lots of prominent Republicans, among them two former GOP presidential candidates and Arnold Schwarzenegger, who as governor of California pushed through an independent redistricting commission, something not permitted in most states, including Wisconsin.
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ARNOLD SCHWARZENEGGER: We are here today to ask the Supreme Court to fix something that the politicians will never do because the politicians are interested in only one thing. And it is to stay in power no matter what.
TOTENBERG: Or as he said at a rally later...
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SCHWARZENEGGER: So I say it is time to say hasta la vista to gerrymandering.
TOTENBERG: Inside the Supreme Court chamber, all eyes were on Justice Anthony Kennedy, who in 2004 left the door open to his pivotal vote on this issue if manageable standards could be found to identify cases of extreme partisan gerrymandering. Today he gave few hints as to his thinking, but he did not seem inclined to derail the case on procedural grounds, something his more conservative colleagues clearly wanted to do.
Justice Breyer focused on Kennedy's question, manageable and fair standards for judges to use in these cases. Among Breyer's suggestions - limit judicial oversight to cases where one political party has complete control of the redistricting process and, as in this case, gives itself a majority of seats with a minority of the statewide vote, thus entrenching its power. Then ask whether there was a neutral motive for drawing the districts this way, like respecting county or municipal lines. Representing the state, lawyer Misha Tseytlin called Breyer's suggestion a nonstarter that would force the courts to rely on a battle of experts.
Justice Kagan noted that state legislators rely on these same experts to entrench the party in power. Drawing district lines, she said, is no longer airy-fairy guesswork but pretty scientific.
Justice Sotomayor added that Wisconsin Republicans relied on these very experts to make the districts more gerrymandered. That's true, conceded lawyer Tseytlin. So why didn't they take one of the less gerrymandered maps, asked Sotomayor. Answer - because there was no constitutional requirement that they do so as long as they followed traditional principles like having districts with equal populations.
Justice Ginsburg wasn't buying the argument. What becomes of the precious right to vote if you can stack a legislature, she asked.
Making the case for judicial oversight of partisan gerrymandering was lawyer Paul Smith of the Campaign Legal Center. What the state is asking for here is a free pass to continue using an assembly map that is so extreme that it effectively nullifies democracy, he said.
Chief Justice Roberts - the main problem for me is if you prevail here, there will naturally be a lot of these claims raised around the country and every one of them will come here for a decision. We'll have to decide in every case whether the Democrats win or the Republicans win based on, quote, "sociological gobbledygook" and the intelligent man on the street will believe we're favoring one party or the other. That, said the chief justice, is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.
Those cases are already being brought, replied lawyer Smith. It may be that you can protect the court from seeming political, but the country is going to lose faith in democracy big time. The modern gerrymander, he said, is not your father's gerrymander. It is instead gerrymandering on steroids fueled by computers, new kinds of voter data and a polarized electorate. If you let this go without judicial oversight for the outliers, in 2020, he said, you're going to have a festival of copycat gerrymandering the likes of which this country has never seen.
Nina Totenberg, NPR News, Washington.
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