Gerrymandering, the Supreme Court, and the 2018 Midterms

February 13, 2019 | Lance Kotler

Edited by: Riya Jain

As many of the 2018 midterms’ races hinged on such narrow margins, states started to hold recounts, with people claiming that “every vote matters!” Although an optimistically democratic notion, foundational flaws in the electoral process, such as gerrymandering, were revealed to have severely limited (and continue to limit) the power of Americans’ votes. Thus, it’s necessary to question if the midterms really were the “Blue Wave” that had statistically been forecasted, and if not, were they naturally or unconstitutionally hindered? These queries, which persist from election to election, have become especially relevant today, designating the Supreme Court as an essential actor in this determination. As such, how will our nation’s highest court react to these potential threats to American democracy?

Although Democrats did retake control of the House of Representatives and flipped multiple governors’ races to even the gap, their victories fell short of projections of the Blue Wave “sweeping” the country. For instance, Democrats fell further behind in the Senate, with Republicans gaining another seat, and did not win all of the districts they were expected to flip. Many statistical indicators point to the fact that gerrymandered maps were what brought this “wave” crashing down. Some of the projections weren’t wrong: Democrats did comfortably win more than 50% of the popular vote (55.4% to 43.0% in the Senate, [1] and 51.7% to 48.4% in the House).[2] Although still a win in the House, the net-positive 4 million Democratic congressional votes over Republicans should have yielded higher than a meager 26-seat, or so, advantage.[3]

The reason it didn’t is due to the 2010 census maps drawn by Republicans after their sweep of state legislatures in the year’s election cycle. They were drawn to be a “firewall against the popular will of voters” by “carving out districts that systematically favor the GOP and neutralize support for Democratic candidates.”[4] For example, in Wisconsin, Republicans have won super-majorities in the state legislature even in years when the Democrats won 175,000 more popular votes, due to the district lines that they drew. This was especially evident in the midterms, as Democrats swept the state offices but did not obtain any net gain in either the state senate or assembly. In North Carolina, a 50% Democratic popular vote yielded only 23% congressional delegation,[5] a glaring instance of the unconstitutional seawall built to halt such a Blue Wave. 

If the Voting Rights Act isn’t already dead, this could be a step toward its end. As southern states are sending challenges to minority voting, such as removing federal oversight of their state voting rules and instituting new voter ID laws, the legality of these obstacles to popular sovereignty are now being considered by the Supreme Court.[6]  Although previously blocked by Obama, the acts are currently up to the discretion of a 5-4 conservative-leaning Supreme Court. If it gives any indication, this situation draws parallels with the Supreme Court’s recent action on gerrymandering, a key landmark case determining Americans’ voting power. In June, the Supreme Court punted on two partisan gerrymandering cases, Gill v Whitford from Wisconsin, and Maryland’s Benisek v Lamone, leaving state-gerrymandered maps untouched for now.

Gill v Whitford reflected overly gerrymandered maps in Wisconsin, which prompted constituents to file a lawsuit claiming that they unconstitutionally violated their First Amendment freedom of (political) association and the Equal Protection Clause of the 14th Amendment.[7] Their push made it to the Supreme Court and hinged on a recently developed idea by University of Chicago political scientists called the “efficiency gap,” or a metric of how many “wasted” votes each district carried. The district court had ruled in favor of striking down the Wisconsin map, seeing that despite Democrats won a majority of the Assembly vote in both 2012 and 2014, Republicans won sixty of the ninety-nine seats.[8] Using a three-part test, the lower court found both bad intent and effect of special partisan measures used to maximize Republican advantage in the seats, making it the first time in three decades that a federal court invalidated a redistricting plan on “partisan bias.”[9] However, after an appeal by the state of Wisconsin, the Supreme Court unanimously deferred action on the case because it lacked “standing.”[10] The “injury” presented by the plaintiffs (their individual districts being unfairly drawn) wasn’t tied to the “remedy” proposed, which was to fix the state map and get rid of partisan gerrymandering. Instead of dismissing the case, as it usually does when they lack standing, the justices sent it back down to the district court, giving it another opportunity to be resolved.

The district court is set to hold its trial on April 23-26, 2019. The court could maintain its previous decision, which would likely be appealed, meaning the case could return to the Supreme Court by June, and a landmark decision would be set. The Court’s four Democrats wrote a brief that highlighted the lack of standing in the Gill v Whitford case but also the “sizeable disparate effect” that the Wisconsin house plan had on the “natural political geography,” which state Republicans claimed gave them a natural advantage over Democrats in the state who were clustered in the cities.[11] In the Supreme Court, it’s likely only one more justice would need to share this sentiment for a ruling to strike down the partisan districting on constitutional grounds, setting a wide new precedent for federal action against gerrymandering.

Meanwhile, in Maryland, plaintiffs brought a similar case to the US District Court on the grounds of the First Amendment’s freedom of political association as well as Article 1 Section 2 of the Constitution’s right to representation.[12] The District judge dismissed the case on lack of a “claim” but without convening a three-judge panel, prompting an appeal to the 4th Circuit Court of Appeals, which affirmed the district court’s decision to not convene such a panel and causing the plaintiffs to appeal again. This case, titled Benisek v. Lamone, reached the Supreme Court on December 8, 2015. They unanimously ruled against both lower courts’ decisions, with Justice Scalia stating that a three-judge panel was expressed necessary for such a case under the law, allowing it to proceed through 2016.[13] The state of Maryland, in 2017, however, opposed the plaintiffs’ motion for preliminary injunction, causing the case to be reheard by the District Court. On November 7, 2018, the district court ruled with the plaintiffs to permanently end usage of the 2011 districting plan and ordered the state to draw new maps for the 2020 elections by March 7, 2019, under the approval of a three-person commission including a magistrate judge.[14]

As expected, the case’s defendants appealed this ruling to the US Supreme Court a month later, the opposite of the Gill v Whitford case’s appeals party. This sets a gerrymandering-heavy 2019 docket for the Supreme Court, where there may be a new national precedent set against these deemed unconstitutional practices, or such drawn maps will continue to be in effect, allowing the 2020 Census to be pivotal for the next election’s maps and representation. Either way, it’s undeniable that the 2018 midterms will factor into their decision, with new data surrounding the redistricting process and its implications across the United States. Nine justices in our nation’s highest course are set to decide one of the most pivotal issues affecting American democracy and voting writ large in the country, so only time will tell whether statutory interpretations or partisan divides will decide the outcome.

Lance Kotler is a freshman at Johns Hopkins University, where he is majoring in International Studies and Spanish with a minor in Business.


[1] Blake, Aaron. “Some Democrats Are Complaining about the ‘Senate Popular Vote.’ It’s Still Not a Thing.” The Washington Post, published 7 Nov. 2018, www.washingtonpost.com/politics/2018/11/07/some-democrats-are-complaining-about-senate-popular-vote-its-still-not-thing/?utm_term=.ac6335a36c84

[2] Price, Greg. “Here’s All the Midterm Elections Democrats Have Won so Far as GOP Losses Continue to Mount.” Newsweek, published 14 Nov. 2018, www.newsweek.com/midterm-election-results-how-many-democrats-won-1215037

[3] Illing, Sean. “What the 2018 Midterms Mean for the Democrats’ Gerrymandering Dilemma.” Vox, Vox Media, 7 Nov. 2018, www.vox.com/midterm-elections/2018/11/7/18071560/2018-midterm-elections-democrats-gerrymandering

[4] Ibid.

[5] Wolf, Thomas, and Peter Miller. “How the GOP Gerrymander Blocked the Blue Wave in NC.” News Observer, 12 Nov. 2018, www.newsobserver.com/opinion/article221532225.html

[6] Valelly, Richard M. “Will The Voting Rights Act of 1965 Survive?” Scholars Strategy Network, Feb. 2013, pp. 1–2, http://www.scholarsstrategynetwork.org/sites/default/files/ssn_basic_facts_valelly_on_the_second_reconstruction2.pdf

[7] “Gill v. Whitford.” Improving Judicial Diversity | Brennan Center for Justice. November 13, 2018. https://www.brennancenter.org/legal-work/whitford-v-gill.

[8] Ibid.

[9] Ibid.

[10] Prokop, Andrew. “The Supreme Court still won’t crack down on partisan gerrymandering — yet, at least.” Vox, Vox Media, 6 June 2018, https://www.vox.com/2018/6/18/17474912/supreme-court-gerrymandering-gill-whitford-wisconsin

[11] Ibid.

[12] “Benisek v. Lamone.” Improving Judicial Diversity | Brennan Center for Justice. December 18, 2018. Accessed December 20, 2018. https://www.brennancenter.org/legal-work/benisek-v-lamone-amicus-brief.

[13] Ibid.

[14] Ibid.

Photo Credits: AP

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