High-court case on redistricting could set new standard to limit partisan mapping, force changes

One-third of all modern redistricting maps passed by state legislatures failed the standard that reformers want the U.S. Supreme Court to adopt in a case that will be argued Tuesday, the Republican solicitor general of Wisconsin wrote in defending the state's maps in the case.

Solicitor General Misha Tseytlin also argued that the standard suggested by the plaintiffs "is unreliable and favors Democrats," writes Patrick Marley of the Milwaukee Journal Sentinel. "But attorneys for the Wisconsin Democrats said just 10 percent to 20 percent of past maps could have faced challenges under their test — and a majority of those questionable maps helped Democrats."

Both sides' calculations went back to 1972, the first major round of legislative and congressional redistricting under "one person, one vote" rules that the Supreme Court established in the 1960s, reducing rural influence in state legislatures and, to a lesser degree, in the U.S. House. The Senate, with two senators from every state regardless of size, retains much rural influence.

"The Wisconsin Democrats proposed a new test to determine whether maps were unfairly one-sided. Their test counts 'wasted votes' — that is, any votes beyond those needed to elect a candidate — to determine the 'efficiency gap' of a map," Marley explains. "Maps have large efficiency gaps when they spread one party’s voters into districts in a way that creates a significant number of wasted votes for them."

The U.S. Court of Appeals "cited the efficiency-gap test as evidence that Wisconsin’s maps were unconstitutional, but did not entirely rely on the test for its decision," Marley reports. "Attorneys for Wisconsin have told the Supreme Court the test is biased against Republicans because Democrats tend to cluster in cities such as Madison and Milwaukee."

The Supreme Court "has found maps can be so heavily skewed to favor one party as to violate the U.S. Constitution," Marley notes. "But the justices have never struck down a map on those grounds and have disagreed on whether courts can measure when that happens. Both sides see Justice Anthony Kennedy as the key vote in the Wisconsin case."

Tseytlin, a native of Russia, was a law clerk for Kennedy. Thirteen years ago, Kennedy asked for suggestions for standards by which partisan redistricting could be judged. "If workable standards do emerge to measure these burdens . . . courts should be prepared to order relief," Kennedy wrote.