Democrats are demanding they have a right to win.
Democrats are asking the court to enter the political realm and find, for the first time, that a legislative map is unconstitutional on partisan-related grounds.
What they are, in essence, saying is that it’s unfair a state which historically elected Democrats, is suddenly voting for Republicans.
Once again the Democrats are demanding equality of outcome, not a fair playing field.
From Real Clear Politics:
Does the Democratic Party have a constitutional right to win a minimum number of elections?
Of course not, but that’s what lawyers for a group of Wisconsin Democrats effectively argued at the Supreme Court in Gill v. Whitford.
Despite decades of experience and legal precedent to the contrary, Democrats are asking the Court to enter the political realm and find for the first time that a legislative map is unconstitutional on partisan-related grounds.
In other words, for the first time, the Supreme Court is being asked to throw out district boundaries not based on breaking the law, but that they were drawn in such a way to give one political party an advantage over another.
This has been a long-time battle. Back in the 1990’s Democrats drew North Carolina’s congressional districts following unpopulated freeways so they could create districts that gave them 9 of 12 seats.
But at that time, the challenge was “Did the law violate the National Voting Rights Act?”
This time it is strictly “Will the court say one political party can have too much of an advantage?”
Real Clear Politics continued:
The Supreme Court should take a pass.
In the Badger State, which voted for President Trump and where Republicans hold nearly all statewide elected offices, Democrats ask the Supreme Court to overturn Wisconsin’s legislative map because their party has failed to translate its statewide vote totals into a proportionate number of wins in the state legislature.
Never mind that America has a winner-take-all system, where winning individual elections, not running up votes, is what matters. Or that Wisconsin Democrats cluster predominately in the cities of Milwaukee and Madison, while Republicans are spread out more evenly (and therefore are more competitive) throughout the state.
So, the Democrats receive an overwhelming vote in two cities, therefore the liberal cities control the state legislature.
Or that significant crossover voting exists in Wisconsin, where the majority of voters in fifteen separate legislative districts split their ticket between 2012 and 2016 – choosing one party’s candidate for President or Governor and the opposing party’s candidate to represent them in the state legislature.
And never mind that the law is not on their side. Nothing in the Constitution, or indeed the entire political history of the United States, suggests that a party has a legal right to win individual legislative elections proportionate to its statewide vote total.
But that is not good enough for the Democrats. They will keep on suing until they win.
The problem is that no “limited and precise rationale” exists today, nor will it likely ever. This time around, Democrats ask the Court to embrace their latest pet theory of “partisan symmetry” as measured by the “efficiency gap,” which assumes that parties should win roughly the same proportion of legislative seats as the total votes received across an entire state.
In other words, the Democrats are saying “Obama received 52% of the vote, so therefore we deserve 52% of the vote in the legislature.”
The nonsense of this is Obama wasn’t running in the legislative districts. Some Republican candidates were more popular than the Democrat candidates.
The big problem is: partisan gerrymandering of the kind alleged in Wisconsin simply does not violate any “well-developed and familiar” Constitutional right.
You don’t have a right to win an election without getting enough votes.
Far from “well-developed and familiar,” this is outlandish.
Second, partisan intent does not place a meaningful burden on any fundamental right or liberty interest. Simply put, nothing stands between the voter and the ballot box, and all votes are counted equally. What Wisconsin Democrats demand is a right, not for Democrats to participate in elections, but to win them.
Third, partisan districting places no burden on First Amendment speech or association.
Legislative map-drawing does not prevent anyone from speaking or associating with, or voting for, the candidate or party of their choice. Nor do the plaintiffs claim this; instead, they assert a right for their candidates to be elected and for government control. Good luck finding that in the First Amendment.
And so, Democrats ask the Court to adopt a standard which is neither “judicially discernible” nor “manageable” in order to enforce a constitutional “right” which does not exist.
Courts should be above the political fray – holding a legislature’s redistricting plan unconstitutional because a political party is unhappy with its election results would politicize the judiciary to its detriment.
The question remains: Should the courts worry about political victors, or make sure every vote counts?