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Supreme Court Prepares To Hear Gerrymandering Case

Oct 1, 2017
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MICHEL MARTIN, HOST:

Now we turn to our regular feature Words You'll Hear. That's where we try to explain some of the stories we'll be hearing more about in the coming days by parsing some of the words connected to it. This week, we've got two words - cracking and packing. And we'll be hearing those words because of a case going before the Supreme Court on gerrymandering. That's what happens when lawmakers draw political districts to give one party - generally incumbents - an advantage in elections.

The high court is looking at this issue because, last year, for the first time in more than three decades, a district court in Wisconsin ruled that the state's redistricting plan was too partisan. Justices this week will consider the question - just what is too partisan? Joining us now in the studio to talk about this and how cracking and packing fits in is NPR legal correspondent Nina Totenberg. Nina, thanks so much for joining us.

NINA TOTENBERG, BYLINE: My pleasure. I just should have brought my bubble gum so I could crack and pack.

MARTIN: You know, honestly, I was thinking cracking and packing sounds like something you might do with a delicious snack. So what does it mean, though, in the context of this oral argument?

TOTENBERG: What it means in the terms of redistricting is how you draw the lines to pack voters of one party into a limited number of districts - a small number of districts - and to crack voters of a party by splitting them apart - diluting them - so that they don't have that much effect.

MARTIN: Tell me about this case. How did it get to the Supreme Court?

TOTENBERG: Well, starting in 2011, Republicans in the state of Wisconsin for their first time in, I think, four decades, actually had unified control of the state in a year right after a census took place. So they were in charge of redrawing the districts. And they did that in secret. And they created districts that the Democrats heartily objected to as cracking and packing.

And lo and behold, the following year, the Democrats won a majority of the votes. The Republicans only carried 48.6 percent of the votes, but they got 60 out of 99 state legislative seats. So nearly two-thirds, even though they lost the majority of the statewide vote. So the Democrats took them to court. The lower court ruled that this was extreme gerrymandering in violation of the Constitution. And now, the legislature and the state have appealed to the Supreme Court.

MARTIN: Is there a legal test for how districts have to be drawn? I mean, I understand that there are dozens of friend-of-the-court briefs with suggestions on how the court should go about deciding. Can you just talk about that a little bit?

TOTENBERG: Well, there are a number of suggested tests. One is a mathematical formula for measuring, when districts are drawn, to over-concentrate the voters of one party in a few districts but not the other party. That's the so-called efficiency gap. The lower court, in striking down the Wisconsin gerrymander, relied on that measurement in part, but it applied sort of a more conventional overall legal test. Was there discriminatory intent in drawing the districts? Does the plan entrench the incumbent party? And is there a neutral explanation for all of that? For example, did you draw the lines to try to keep counties in the same district, that sort of thing?

MARTIN: So, Nina, we know that a range of political figures are starting to talk more about gerrymandering, saying it's bad for democracy. They're saying it's a reverse of the way it's supposed to work - that rather than voters picking their officials, that officials are picking their voters. OK. But what's the question for the court - is the Supreme Court going to decide if this is bad for democracy? Or what question are they going to address?

TOTENBERG: The question really is not, is this bad for democracy? The legal question is, can we even measure this? Should we get into it? Is this a political question that we should stay out of? And can we define what's extreme gerrymandering? And does that - in the words of Justice Kennedy, who's likely to be the deciding vote in this case - if you play around with these districts too much, have you devalued one party's voters so much that you are denying them their First Amendment right of freedom of association so that their votes don't count as much?

MARTIN: That's Nina Totenberg. She's NPR's legal correspondent. She was kind enough to join us in our studios in Washington, D.C. We hope this will be the first of many conversations about this upcoming term. Nina, thanks so much for speaking with us.

TOTENBERG: If I live through the term (laughter). You're welcome. Transcript provided by NPR, Copyright NPR.