Here & Now

Gill v. Whitford: Wisconsin Case Heard In The Supreme Court

Frederica Freyberg:

Our first look this week, arguments before the U.S. Supreme Court regarding Wisconsin's political boundaries. This case started in 2010, when Republicans gained complete control of Wisconsin's government. In 2011, Republicans redrew state Assembly district maps to help them convert normally close elections into legislative majorities. The following year Republicans won only 48.6% of the statewide vote for Assembly candidates, but captured 60 of 99 seats. In 2015, the case Gill versus Whitford was filed as Democratic voters sued, saying voting maps warped by politics violated the Constitution. This past June, the U.S. Supreme Court agreed to hear this case. The Supreme Court has never struck down a redistricting map based on whether it was drawn to benefit one political party. The court has, however, left open the possibility that some political maneuvering may be too extreme. The Wisconsin case is expected to have national implications. Wisconsin Public Radio’s Capital Bureau Chief Shawn Johnson just returned from the Supreme Court hearings in Washington and he joins us from the state capitol, where lawmakers are watching how it could impact their elections. Shawn, thanks a lot for being here.

Shawn Johnson:

Thanks for having me.

Frederica Freyberg:

Refresh our recollections about the arguments on both sides of this.

Shawn Johnson:

Yeah. I think this case in a nutshell kind of boils down to when partisan redistricting becomes too partisan to the point that it violates the Constitutional rights of the party that wasn’t in power. The voters for the party that wasn’t in power when map lines get drawn. And so that is what frames this case, is democrats have said indeed Wisconsin’s map was too partisan. We don’t have a voice in our state government. And so they not only want Wisconsin’s map overturned. It would also set a national standard so that cases like these could be brought elsewhere in the country.

Frederica Freyberg:

So having heard the oral arguments, what can you ascertain about the position of the justices?

Shawn Johnson:

Well, we went in kind of knowing that there was this conservative block who we thought viewed the cases one way and this liberal block who viewed them another one. A lot of the justices reaffirmed those suspicions. You had three conservatives speak during arguments and express quite of bit of skepticism about whether the court should step into cases like this. I think you’d have to say the most outspoken critic or skeptic at least of whether or not the Supreme Court should get involved in partisan gerrymandering cases was Chief Justice John Roberts. He said that if partisan gerrymandering claims like these become something that you can take to the court, we will get every one of them. And that even if we based our decisions on the latest social science, on math, that the average person in the street is going to view the court as siding with Democrats or with Republicans. He said that’s going to damage the reputation of the court. Here’s Chief Justice John Roberts.

John Roberts:

And that’s going to come out one case after another, as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.

Frederica Freyberg:

Now, on the other side of the court, the other persuasion of the justices, they suggest that these legislative boundaries in Wisconsin result in predetermined results.

Shawn Johnson:

And you had kind of the counterweight to Justice Roberts' argument delivered by Justice Ruth Bader Ginsburg, who’s one of the four justices on the court who were appointed by Democratic presidents. Justice Ginsburg said what happens when you have a legislative map that has kind of stacked the lines to such a degree that when it comes time for elections, voters already know the outcome. Here’s Justice Ginsburg.

Ruth Bader Ginsburg:

What becomes of the precious right to vote? Will we have that result when the individual citizen says, “I have no choice. I’m in this district and we know how this district is going to come out.” I mean, that’s something that the society should be concerned about.

Shawn Johnson:

And you also heard three of the other justices appointed by Democratic presidents say, “Look, the case here is pretty clear. We know that they drew the maps as partisan as they could. We also know that we can measure these things now. That social science has advanced to a degree now that even judges can figure out how these maps can be evaluated.”

Frederica Freyberg:

Meanwhile, Justice Kennedy is described as the swing vote on this. Did you get that sense from his questions?

Shawn Johnson:

Yeah. We went into arguments thinking that he was the pivotal vote and everybody was wondering what kind of hints he was going to send during arguments. I think everybody left arguments thinking the same thing, that while you had three of the four conservatives who seemed to tip their hand a bit as to where they were going and a fourth, Justice Thomas, who everybody assumes is going to vote with them. And you had the court’s four liberals tipping their hand as well. You had Justice Kennedy playing his cards pretty close to his vest.

Frederica Freyberg:

Yeah. No. Go ahead. I understood that, too, that he asked questions mostly pertaining to standing.

Shawn Johnson:

Yeah. Right out of the gate, I mean, when arguments started, he cut off the Wisconsin Department of Justice attorney relatively quickly and wanted to know, you know, whether this case would be viewed differently if it was a First Amendment case versus a 14th Amendment case. He was very interested in standing. And so that’s left people kind of scratching their heads as to what he might be thinking as he’s looking at that standing. What he did not get into is whether or not this case has that kind of bright line metric to measure partisan gerrymandering. That’s something that Kennedy said in 2004 he was looking for. We presume he’s still looking for it in 2017. But he gave no hints as to whether or not he thought this case had what it takes.

Frederica Freyberg:

Briefly, with less than a minute left, what happens if the high court overturns these maps and what happens if they don’t?

Shawn Johnson:

If the high court overturns these maps, we don’t exactly know. The presumption is you’d have a legislative map eventually in Wisconsin that’s more competitive, that leads to more Democrats being elected and fewer Republicans. But we don’t know. And we don’t know when that’s going to happen, whether it be before 2018. If the court decides not to strike down Wisconsin map; that is, it upholds the map, does not set a new standard nationwide, this could be the last time the court revisits this issue for years, a decade, a generation. Could be a long time.

Frederica Freyberg:

Okay. Very meaningful stuff. Shawn Johnson, thanks very much for your reporting.

Shawn Johnson:

You're welcome.