SENATORS McCAIN & WHITEHOUSE CALL ON SUPREME COURT TO REASSESS CONSTITUTIONALITY OF PARTISAN

Washington, D.C. – U.S. Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI) today are submitting a brief with the Supreme Court in a case that could address wildly partisan gerrymandering of political districts and loosen the grip of special interests on American politics. In their friend-of-the-court brief, the senators describe the effects of hyper-partisan redistricting and special interest influence in Washington, and call on the Court to adopt a new standard for assessing the constitutionality of partisan gerrymandering.

“Americans do not like gerrymandering,” the senators write. “They see its mischief, and absent a legal remedy, their sense of powerlessness and discouragement has increased, deepening the crisis of confidence in our democracy. We share this perspective. From our vantage point, we see wasted votes and silenced voices. We see hidden power. And we see a correctable problem.”

The case before the Court, Gill v. Whitford, concerns the Wisconsin state legislature’s 2011 redistricting map. In 2015, a group of Wisconsin voters challenged the map in federal court as an excessively partisan gerrymander barred by the Constitution. Last year, a lower court ruled that the map violates both the Constitution’s Equal Protection Clause and the plaintiffs’ First Amendment freedom of association. An appeal of that ruling is set for oral argument before the Supreme Court this fall.

Whitford will force the Court to revisit its 2004 decision in Vieth v. Jubelirer, where it acknowledged the constitutional problems posed by excessively partisan gerrymandering but declined to intervene, lacking an easily manageable judicial standard. Now, the lower court ruling in Whitford has articulated exactly such a test, offering a “clear roadmap” for other courts to use by requiring evidence of discriminatory intent, a large and durable discriminatory effect, and a lack of a legitimate justification. It is up to the Supreme Court, the senators write, to use that roadmap to protect Americans’ constitutional rights.

The senators also describe the consequences of Vieth, which has left an opening for special interests to hijack the political process using sophisticated new mapping technology and secret political spending, so-called “dark money.” That influence, combined with hyper-partisan redistricting processes employed by Republicans and Democrats alike, has distorted the very premise of our representational form of democracy, eroding the public’s confidence in our political system.

“The increase in partisan gerrymandering following Vieth, fueled by dark money contributions and advanced technology, distorts our representative democracy and pollutes Americans’ faith in their political institutions,” write the senators. “As Republicans and Democrats battle each other to control redistricting, the real losers are the American people.”

A copy of the brief is here.