On the second day of its 2017-18 term the U.S. Supreme Court heard a case likely to determine the balance of power between Republicans and Democrats for decades to come. The Court is considering the issue of partisan gerrymandering — the process of drawing legislative district lines to entrench one party's political power.
When lawmakers engage in partisan gerrymandering they essentially pick who representatives will be before anyone ever sets foot in a ballot box. This is deeply and imminently important because, in the endless election cycles that dominate American politics, the 2018 midterms are just around the corner. Democrats are emphasizing the need to "win back the House." Republicans highlight the importance of keeping their majority in Congress.
Despite a bruising 2016 campaign and a deficit of 24 House seats, political markers are giving the Democrats hope. The president's party usually loses seats in midterms. This is particularly true when it controls both the Senate and the House of Representatives. In addition, President Donald Trump's approval ratings are, to use a technical word, tanking.
But progressives shouldn't pop champagne corks just yet. Democrats may not be able to translate their strong support into political victory — and the reason has almost nothing to do with their platform or voters, but has everything to do with the issue of partisan gerrymandering.
Let's say that in State X, for example, 60 percent of registered voters are Democrats, 10 percent are independents, and 30 percent are Republicans. Not all registered voters turn out, but the current climate indicates that Democrats are more likely to go to the polls this midterm cycle, and independents are likely to lean toward Democratic candidates.
Given these variables, one might predict Democrats will win more than half of the state legislative races. But, if Republicans were in power after the last census, when the district lines were drawn, it is the GOP that will likely be the big winners on November 7.
How? Because when lawmakers draw district lines they tend to want to keep their jobs and help fellow party members keep theirs. They do this by "packing" and "cracking" voters when drawing district lines.
When lawmakers pack voters, it means that they put many of one type of voter in a few districts. Democrats, for example, could win by huge margins in a few districts, but never obtain enough votes to win the majority of districts.
When lawmakers crack voters, it means they spread one type of voter across many different districts. Republican lawmakers could fan out Democrats throughout the state. So they would have a difficult time getting a critical mass of voters to elect the candidate of their choice.
In both scenarios, Democratic voters' ability to exert their political power and elect their preferred candidates is thwarted thanks to gerrymandering — the process of manipulating district lines to produce a favorable outcome for a specific group.
This is essentially what Democrats claim happened in Wisconsin in 2011, when a Republican-controlled legislature drew state district lines. In 2012, while Republicans won a little less than half of the statewide vote, they won more than sixty percent of the seats in the assembly. This is strong evidence of partisan gerrymandering.
The Supreme Court has never defined when a political party has gone too far in drawing district lines in order to maximize its political power. So Americans don't know when — and even if — partisan gerrymandering is unconstitutional. This is now likely to change.
A lower federal court in Wisconsin agreed with Democrats who challenged the state district maps as unconstitutional. That court ordered Republicans to draw new district lines before the 2018 elections. The Supreme Court agreed to hear the case but stayed the Wisconsin court's decision.
It only takes four justices to decide to hear a case — but at least five to stay a court's decision. That means a majority of the Court agreed that the Wisconsin court's decision in favor of those challenging the district lines should not go into effect.
This looked like bad news for people like me, who believe that the court must not only define what partisan gerrymandering is, but must do it soon. Once it does, the voices of voters throughout the nation won't be packed or cracked into oblivion.
The first question the Supreme Court will tackle is whether or not it can even consider claims of partisan gerrymandering. Back in 2004, the last time the Supreme Court looked at this issue, the Court was divided on the issue of whether or not federal courts can even weigh in on these political disputes, or whether this is a decision best left to the legislative branch.
Importantly, Justice Anthony Kennedy, the court's swing vote in 2004 (as he is today), left the door open to the possibility that courts can hear and rule on these cases.
If the Court believes that it can review these political disputes, the second question the Court will consider is the standard that should be applied to determine when partisan gerrymandering goes too far and crosses a constitutional line.
This case, like so many others, likely rests in Justice Kennedy's hands, and after oral arguments there may be some reason for optimism. Justice Kennedy had sharp questions for those defending Wisconsin's legislative lines, but none for those challenging them. Justice Sonia Sotomayor had perhaps the most stinging question for those defending Wisconsin's legislative lines - "Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?" The attorney's response was a jumbled mess of words amounting to nothing.
At the end of oral arguments it appeared that the four conservatives members of the Court — Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch — would conclude that federal courts cannot resolve challenges based on partisan gerrymandering, and the four liberal members of the Court — Justices Ginsburg, Breyer, Sotomayor and Kagan would.
Now the voting rights of millions of Americans may rest with that one vote, that of Justice Kennedy.
If a majority of the court adheres to the view that federal courts should not or cannot review claims of partisan gerrymandering, that would be a deeply dissatisfying result for many of us who believe the judicial branch has a responsibility to protect voting rights.
In addition, before even one vote is cast in 2018 — or any U.S. election going forward — such a verdict would essentially hand over the reins of power to those who can draw the most politically advantageous district lines — not those who hold the most popular views. A representative democracy works when the people pick the voters pick their representative, not the other way around.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.