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Did district lines rig Wisconsin elections? Supreme Court case could reshape politics

October 3, 2017 at 6:20 PM EDT
The Supreme Court is considering a lawsuit that challenges Wisconsin's legislative map over partisan gerrymandering, and the outcome could have national implications. Special correspondent Jeff Greenfield offers an overview of the case, then Marcia Coyle of The National Law Journal joins Lisa Desjardins to break down the arguments heard by the court on Tuesday.
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JUDY WOODRUFF: But first: The U.S. Supreme Court began its new term this week with a full bench of nine justices and a jam-packed docket.

Today’s case, on partisan gerrymandering, has the potential to reshape American politics as we know it.

Our regular Supreme Court watcher, Marcia Coyle, will join Lisa Desjardins to break down the arguments.

The case centers on a redistricting map in Wisconsin.

And that’s where special correspondent Jeff Greenfield begins.

FORMER PRESIDENT BARACK OBAMA: Hello, Wisconsin!

(CHEERING AND APPLAUSE)

JEFF GREENFIELD, Special Correspondent: The 2012 elections brought good news to Wisconsin Democrats. President Obama carried the state for a second time, and the party won 174,000 more votes for the state assembly than Republicans.

But that didn’t mean Democrats would control the state assembly. In fact, Republicans wound up with 60 of the 99 seats, some 61 percent of the seats, after winning only 49 percent of the votes. Was that because so many Democrats were clustered in urban districts in Madison and Milwaukee?

Bill Whitford didn’t think so. The retired law professor and lifelong Democrat believed the way the district lines had been drawn had effectively rigged the election.

BILL WHITFORD, Plaintiff: The value that’s clearly at stake is that majorities should rule. Democrats got a majority in the statewide assembly vote, and they got less than 40 percent of the seats in the assembly. I mean, that made very clear that we had no chance.

JEFF GREENFIELD: Whitford is the lead plaintiff in a lawsuit that asked the federal court to strike down a legislative map because of a partisan gerrymander, and, last year, a federal district court agreed.

While both parties have gerrymandered, since the 2010 census, it’s mostly helped Republicans, because they have controlled the legislature and governor’s office in many more states. The Brennan Center for Justice in New York has found what it calls extreme maps, where partisan bias, largely from gerrymandering, currently gives the Republican Party a net benefit of 16 or 17 seats in the U.S. House of Representatives, where Republicans have a 23-seat majority.

MICHAEL LI, Brennan Center for Justice: We’re talking about where you grab and lock in a large share of seats, and make it impossible for the party to — the other party to win seats.

JEFF GREENFIELD: The center’s Michael Li co-authored the extreme maps report and also a legal brief that supports the Wisconsin challenge.

If the court goes your way, it’s fair to say this is a big deal?

MICHAEL LI: This would be a very big deal. The court has never put partisan gerrymandering out of bounds in the same way that it’s put racial gerrymandering out of bounds or other things out of bounds.

JEFF GREENFIELD: Li notes that prominent Republicans, including two presidential nominees and a 2016 presidential candidate, back the effort to limit partisan gerrymandering.

But Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, a conservative group, says such limits would be a judicial nightmare.

RICK ESENBERG, President, Wisconsin Institute for Law and Liberty: The problem that the courts have had — and this problem goes back 30, 40, 50 years — is judges have been unable to identify such a judicially manageable standard.

JEFF GREENFIELD: Esenberg filed a Supreme Court brief supporting the existing maps and arguing that Wisconsin’s assembly districts follow all of the existing redistricting rules: They’re compact, contiguous, and encompass communities of interest.

A court-imposed change, he says, would be itself political.

RICK ESENBERG: You’re essentially imposing a constitutional obligation to gerrymander for competitiveness, that is, a constitutional requirement to compensate for the natural disadvantage that Democratic voters might have. That, it seems to me, is every bit as partisan as what the Republicans been accused of doing.

JEFF GREENFIELD: Last year, I spoke with North Carolina Republican State Representative David Lewis, who co-chaired the redistricting committee, who freely says partisanship is perfectly legitimate.

DAVID LEWIS, North Carolina State Representative (R): I think it’s more honest and up-front to say that, as a Republican, I’m going to follow the law, I’m going to follow the rules of the law, and if there is a discretionary decision to be made, I will make it from my partisan point of view.

JEFF GREENFIELD: Like Lewis, Wisconsin’s Republican attorney general, Brad Schimel, says that nonpartisanship is just an illusion.

BRAD SCHIMEL, Wisconsin Attorney General: We could all dream of finding the unicorn that takes all the politics out of these things. But there’s a reality that the Supreme Court has recognized, that you’re not — you can’t take the politics out of this.

JEFF GREENFIELD: In some states, there is no partisan fighting about legislative lines, because the politicians don’t draw those lines. In those states, the power has been taken away from the legislature and placed in other hands.

The biggest is California, where former Republican Governor Arnold Schwarzenegger backed referenda that created an independent commission to handle redistricting. Three other states now take a similar approach.

Schwarzenegger says that, when he became governor in 2003, members of Congress were entrenched and protected.

FORMER GOV. ARNOLD SCHWARZENEGGER, R-Calif.: You had 265 congressional elections in a 10-year period, and only one changed party hands. I always made a joke that there’s more changeover in a former Soviet politburo than we have here in California.

JEFF GREENFIELD: Schwarzenegger says that, since the independent commission took over the process, the state legislature has become far less polarized. He believes that’s the key to creating less partisan districts and relieving gridlock in Washington.

FORMER GOV. ARNOLD SCHWARZENEGGER: For decades now, I have been talking about immigration reform. It can’t get done. You have for decades people talking about in Washington how important it is to rebuild our infrastructure. It can’t get done. It is a dysfunctional system. And it’s dysfunctional because of our gerrymandering.

JEFF GREENFIELD: If the U.S. Supreme Court upholds the lower court’s findings, it could mean legislative maps across the country will be challenged. And that would mean a radically different terrain for the battle for control of the U.S. House of Representatives.

For the PBS NewsHour, I’m Jeff Greenfield.

LISA DESJARDINS: And here now to discuss today’s arguments, as ever, is Marcia Coyle, chief Washington correspondent for “The National Law Journal.”

And she, of course, was in the courtroom today.

MARCIA COYLE, The National Law Journal: I was, Lisa.

LISA DESJARDINS: Now, this is an issue almost as old as our country itself, but yet something that has not been definitively resolved by the Supreme Court.

Can you remind us of the last time the court talked about this? And it’s significant now.

MARCIA COYLE: Oh, absolutely.

The court took up a case out of Pennsylvania in 2003, decided it in 2004, and basically said, we can’t decide this. There is no way to really measure when a partisan redistricting has gone so far that it violates the Constitution.

One of the justices — one of the five who said that was Justice Kennedy, but he wrote separately to say, you know, years to come, there may be some way to measure this. Science, social science will evolve to the point where there will be a standard.

And today, in the Supreme Court, the challengers to the Wisconsin plan offered them several standards.

LISA DESJARDINS: And Justice Kennedy was quoted in many of the very long briefs here.

So, what did Justice Kennedy say today, and what did other justices, especially the chief justice, Roberts, say ?

MARCIA COYLE: Justice Kennedy didn’t give the challengers a hard time at all. In fact, he asked no questions of them.

But he did give the state of Wisconsin a rather difficult time. And we took away from that that he may think that perhaps it is time for the court to accept one of the standards that’s being offered, especially in a district where it appeared that most of the justices seemed to feel this one may have gone a bit too far.

LISA DESJARDINS: And Chief Justice Roberts, however, talked about the institution of the court itself. Can you talk about the stakes that he sees on the table here?

MARCIA COYLE: This was really a fascinating argument, Lisa.

And you saw the policy considerations playing out in different ways. The chief justice said, look, you know, if we strike down a redistricting map like Wisconsin, and the decision favors the Republicans or it favors the Democrats, and we say the reason we did it is because of a mathematical formula, the average person on the street is going to say — and these are his words — what a bunch of baloney, that we really voted because you had maybe five Democratic or Republican-appointed justices.

What is that going to do to the integrity of the institution of the Supreme Court? It’s going to throw us into the thick of politics.

On the other hand, you had Justice Ginsburg offering different policy concerns. She said, what about the precious right to vote? What incentive is there going to be for people to vote if the deck is always stacked in favor of one political party?

LISA DESJARDINS: I’m wondering about this case. Is this one of those cases where whatever the justices decide could have a very quick impact on how our politicians act, whether they uphold this map or whether they reject it? Can you talk about what could happen?

MARCIA COYLE: Absolutely.

As the lawyer for the Wisconsin challengers pointed out, the court is the only institution right now that can deal with what he said the cusp of a very serious problem, that if the court doesn’t come up with some kind of test, in 2020, after the census, he said there will be a festival of copycat partisan gerrymanders, the like of which we have never seen.

And that, he said, presents a serious problem for democracy. As Justice Ginsburg pointed out, the right to vote is our most fundamental right.

LISA DESJARDINS: Marcia Coyle, I can’t wait to see what happens with this case. And you will be here to talk to us about it. Thank you.

MARCIA COYLE: And, Lisa, remember, too, our viewers can listen to the audio on Friday on the Supreme Court Web site.

LISA DESJARDINS: Perfect.

Thank you, Marcia Coyle.

MARCIA COYLE: My pleasure.

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