In October 2017, the U.S. Supreme Court heard arguments in Gill v. Whitford, a case involving a Wisconsin gerrymandering law that compacted Democratic voters into fewer districts. The law, as written, increases the number of “wasted” Democratic votes—or votes that do not “count” because, in an electoral system, votes for a losing party are null. The law thus dilutes the Democratic vote and aids Republicans in maintaining their majority hold. The Campaign Legal Center challenged the law on constitutional grounds, claiming it violated the one-person, one-vote principle and the Equal Protection Clause of the 14th Amendment.
Gill is the first partisan gerrymandering case to be heard by the Supreme Court since Vieth v. Jubelirer in 2004, when Justice Antonin Scalia declared that the court should never hear such cases since no court had ever found a remedy to the problem. However, his recommendation referred specifically to partisan gerrymandering, as racial gerrymandering has historically been granted certiorari on a constitutional basis—most recently in Cooper v. Harris (2017). In that case, the court reaffirmed that redistricting based on race to dilute the impact of minority citizens’ votes is unconstitutional. This point is important because, although partisan but not racial gerrymandering is at issue in Gill, it may have a similar racially disparate impact on voter representation.
According to a 2016 Pew Research Center report, 33 percent of Democratic and Democratic-leaning voters are black or Hispanic, while only 8 percent of Republican and Republican-leaning voters are. Thus, by increasing wasted Democratic votes, the gerrymandering at issue in Gill likely disproportionately affects minority voters. The perception that the way the districts have been drawn is unfair could deter minorities from voting.
The disenfranchising effect of gerrymandering may also extend to all voters. One important consideration is whether supporters of the losing party believe they are being punished for how they vote. This concern is the basis of Benisek v. Lamone, a Maryland partisan gerrymandering case also on the court’s docket. In this case—which was brought by Republican voters against a Democratic gerrymander—the plaintiffs argue that the state’s redistricting was a retaliation against citizens who voted for the losing party, and therefore violated their First Amendment rights. Such experiences of perceived voter injury also might have a disenfranchising effect: Research shows that social pressure, or the drive to gain praise and avoid punishment, significantly increases voter turnout. It is reasonable to argue, then, that if voters feel they have already been punished or that punishment is a likely outcome, social pressure to vote may dissipate and turnout may decrease.
Perhaps the most important outcome of the Supreme Court’s decisions in these cases will be whether the justices conclude that partisan gerrymandering claims can be settled by a court. If the court holds that it has the authority to entertain political gerrymandering cases, look for this and future cases to consider the science that might support an objective, empirical standard for testing the negative effects of partisan gerrymandering.
Psychologists can shed light on the influence gerrymandering has on voter perceptions of the legitimacy of the system. Doing so will allow the courts and state legislatures to understand more fully the consequences of partisan gerrymandering for our democracy.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
