Could U.S. Supreme Court Make California’s Map an Unconstitutional Gerrymander?

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

Formulas have already made California’s governing system a dysfunctional mess.

Could a new formula from the U.S. Supreme Court do the same to California’s redistricting reform?

That seems very possible after oral arguments in a challenge to districts drawn by the Wisconsin legislature. The challenge argues that the Wisconsin gerrymander was too partisan – the Republican party designed districts that runs 49 percent of the vote statewide in legislative elections into 60 of the 99 seats in the Assembly in 2012. Two years later, the GOP received 52 percent of the statewide vote share and won 63 Assembly seats.

Reformers, including former Gov. Arnold Schwarzenegger, have attacked this as partisan gerrymander and have asked the U.S. Supreme Court to put a stop to it. Fair enough. But the justices indicate that if they are going to intervene in a partisan gerrymander for the first time, they need to do it with what they call “clear standards” that state legislatures and courts can follow in the future.

“Clear standards” is judicial speak for a formula. And a formula is what the challengers want too. They offered the court several possible formulas by which redistricting processes may be judged.

Maybe a formula sounds better than a partisan gerrymander, but political reform is often a game of good intentions and very bad unintended consequences.

The court’s liberals outlined a standard that would have many parts, as formulas do. The factors would be whether a single political party controlled the redistricting process, whether the maps give an asymmetrical advantage to one party, and whether that advantage is likely to last for multiple elections.

Don’t look now, but when you consider those standards, there’s a state that would seem to be at risk: California.

Our districts produce a far greater representation for Democrats than their actual share of the votes in legislative elections. And that advantage has endured over multiple elections.

But, you object, doesn’t the nonpartisan redistricting commission’s drawing of the maps indicate that a single party did not control the process? Maybe. Or maybe not. ProPublica and several Republicans alleged that the Democrats effectively controlled the commission’s last redistricting. A state commission can do a partisan gerrymander just as much as a state legislature can.

California reformers should be careful what they wish for on redistricting. And they should reduce expectations that the courts can solve the problem of partisan gerrymanders. The process of redistricting has always been political. And no matter what the courts do or what a formula says, the process will always be political.

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