Darryl Paulson: Will partisan gerrymanders end this year?

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We know Florida has the third largest population of the 50 states, which means it has the third largest congressional delegation. Its 27 members are split 16 to 11 in favor of Republicans, even though Republicans amount to 35 percent of the electorate.

Democrats are 38 percent of the Florida electorate, but their support is concentrated in the urban areas of Florida. Gerrymandering has become the lazy person’s way to explain political defeat. If we lose, it is due to partisan gerrymandering. If we win, we are better than the other side.

Democrats hoped that the Fair Districts Amendment, passed by over 60 percent of Florida’s voters, would end Republican dominance in the state. So far, that has not been the case.

Now Democrats hope that the United States Supreme Court will end Republican dominance by overturning partisan gerrymandering. Gill v. Whitford involves partisan gerrymandering in Wisconsin where a Republican minority has resulted in Republicans dominating the state Legislature.

Democrats and critics of partisan gerrymandering believe the “efficiency gap” formula being advocated in Gill v. Whitford will bring an end to 200 years of partisan drawing of district lines. But, half of the members of the Supreme Court, including Chief Justice John Roberts, argue that partisan gerrymandering would create enormous problems.

One of the problems is that the courts would be forced to ignore 200 years of judicial precedence if they overturn partisan gerrymandering. Courts are always reluctant to overturn precedence, especially precedence with a 200-year history.

A second problem is expressed in the comments of Chief Justice Roberts during oral arguments. Roberts argued that in negating such a long-held precedent, it would cause “very serious harm to the status and integrity of this court in the eyes of the country.”

Roberts expressed concern as to whether the country would understand and accept the use of a mathematical to decide constitutional law.

In an unusual move, the Supreme Court decided to hear a second case this term involving partisan gerrymandering. Seldom does the Court hear two similar cases in the same term.

The first case was the Gill v. Whitford case involving partisan gerrymandering in Wisconsin. The second case involves partisan gerrymandering in Maryland, where the Democrats have used gerrymandering to their advantage.

In hearing both cases, the Court could strike down the long-established policy of not interfering in partisan gerrymandering, while not appearing to favor either party. Democrats would be advantaged by overturning partisan gerrymandering in Wisconsin, while Republicans would be advantaged by such a decision in Maryland.

Associate Justice Sandra Day O’Connor argued in a 1986 case that the Court should do what it has always done with respect to partisan gerrymandering:  stay out.

O’Connor argued that the Court did not need to get involved with partisan gerrymandering because “an overambitious gerrymander can lead to disaster for the legislative majority.”

Florida provides just such an example. After complete Democratic domination from 1845 until the 1990s, the Democrats turned down a Republican offer to create an independent reapportionment commission. Within a few years, the voters booted out the Democrats and Republicans have controlled the state Legislature and congressional delegation ever since.

Maybe O’Connor was on to something.

Darryl Paulson

Darryl Paulson is Emeritus Professor of Government at USF St. Petersburg.



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