The U.S. Supreme Court has agreed to hear a political gerrymandering case from Wisconsin. Even though this is the second gerrymandering case to be taken up recently, the political side of gerrymandering is an area of law they have tried to leave alone, a University of Kansas law professor says.
“The Supreme Court precedent in the last number of decades has been a very light touch on political gerrymandering,” said Professor Lumen “Lou” Mulligan. Mulligan is the Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at KU. “By that I mean, the Supreme Court has not overruled state legislatures for political gerrymandering, for no other reason than, once they jumped into that pool, how would they separate wheat from chaff?”
The attempt to separate has taken different tactics this time around.
“The idea is relatively simple,” said Mulligan. “Let’s assume we had a state where there were 100 votes and 60 votes went to Republicans and 40 votes went to the Democrats. Then you ought to assume about 60 percent of the people in the statehouse should be Republicans and about 40 percent should be Democrats. Whenever the people sitting in the Statehouse start to vary from the number of total votes cast, that starts to look like gerrymandering was involved, and that’s what’s going on in the Wisconsin case.”
The intermediate court supported the idea that illegal gerrymandering was occurring in Wisconsin. Mulligan reminds us that from a purely statistical standpoint, the Court does not tend to take on cases for the purpose of upholding them.
“If you’re just betting the odds, the Supreme Court will disagree with the lower court,” said Mulligan. “The Supreme Court reverses about 68 to 70 percent of the time.”
In an important note, the court, after orders were released Monday, issued a separate order granting Wisconsin’s request to freeze the current maps until the Supreme Court hears the case next term. The petitioners had sought to force the state legislature to create a new plan by this fall.