How the Supreme Court Will Have a Big Impact on the Next Election

June 19th 2017

Mike Rothschild

On Monday, the Supreme Court announced it will take on a case concerning the drawing of voting districts to favor one party over the other. Known as gerrymandering, the process has been blamed by Democrats for packing left-leaning voters into districts crafted along racial lines, costing Democrats seats in Congress.

The case, Gill v. Whitford, is a suit filed on behalf of Wisconsin Democrats challenging the state's electoral district map, created by Republicans in the wake of the 2010 census and thought to be one of the most gerrymandered in the country. A three-judge panel ruled that the state's map was unconstitutional, a decision the state appealed to the Supreme Court. 

The case sets up the court to call into question the legality of every state's voting district maps, and to eliminate the ability of dominant parties to draw districts that are favorable to themselves at the expense of equal representation. 

"The 1962 case Baker v. Carr decided that federal courts had the power to decided redistricting issues at the state level," Gettysburg College professor Shirley Anne Warshaw told ATTN:, referencing the court's landmark "one man—one vote" ruling.

That case was the result of a suit filed against Tennessee, which hadn't had its district maps redrawn in 60 years, despite substantial population growth. "The court found that all these different districts have to have the same number of people in them," Warshaw said. "Courts have said it's okay to gerrymander, you just can't deny people of their civil rights, and you can't pack people of certain races into districts."

Indeed, the Supreme Court has taken up previous cases regarding gerrymandering, and has struck down maps drawn along racial divides. But not along partisan ones.

"The Supreme Court's willingness to consider the Wisconsin partisan gerrymandering case is significant," Christian Grose, a political science professor at the University of Southern California, told ATTN:. "The court has considered partisan gerrymandering cases on occasion over the last several decade, but has been much more likely to overrule gerrymandering on racial grounds than partisan grounds."

When the Supreme Court has ruled on partisan gerrymandering, it's always found the issue to be beyond its scope. A 2004 case concerning Pennsylvania districts drawn along partisan lines saw deceased Justice Antonin Scalia declaring that "political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.”

As with most cases involving partisan divides, Justice Anthony Kennedy will likely be the crucial swing vote. "It will be interesting to see if Anthony Kennedy is convinced that Wisconsin engaged in a partisan gerrymander, USC's Grose said. "In past litigation, he has indicated that he is looking for a measure of partisan gerrymandering."

The experts ATTN: spoke to are divided on what the justices will ultimately decide. Warhsaw told ATTN: the John Roberts-led Supreme Court "seems to lean to letting states make decisions" for themselves, and that she doesn't know why this case will be different.

"I think they're likely to kick [the case] back down to the local court," she said.  "They'll rule that voters will have demand new districts be drawn through commissions. Historically, voters have needed to push for reform."

But Grose isn't so sure. "The Wisconsin example is one of the most egregiously lopsided legislative partisan gerrymanders among current legislative redistricting plans," he said. "If the Court can't find a partisan gerrymandering claim in Wisconsin, it will be difficult to establish one in other instances."

If the Wisconsin map is overturned, Republicans could see tremendous difficulty going forward. That's why, according to The Washington Post, the Republican National Committee and a dozen Republican-led states have asked the court to reverse the Wisconsin decision. When the court hears the case in October, then, its ruling could have significant consequences for the way we vote.