Constitutional lawyer Erin Murphy led a spirited discussion Monday afternoon at the Yale Law School at which attendees discussed partisan gerrymandering its legality, and its philosophical implications for American government.
Murphy, a partner at the New York-based firm Kirkland & Ellis LLP, was invited by the Law School’s Federalist Society to speak from her position as counsel on Gill v. Whitford, a docketed Supreme Court case concerning the constitutionality of the Wisconsin state legislature’s planned redrawing of state voting districts.
Challengers to the redistricting plan, Murphy explained, contend that the new districts were shaped to dilute Democratic Party votes and to favor Republican candidates, a process known as gerrymandering.
“There’s no getting away in my mind from the problem in all this,” she said. “To me, the important issue at hand should be where the notion of this constitutional right is coming from, rather than the plaintiff’s focus on the social science that makes this theory work.”
In order to quantify partisan influence, the plaintiffs opposing the Wisconsin legislature developed a theory of “partisan symmetry,” which argues that equal shares of the vote should lead to the same number of seats in government, regardless of which party received the votes.
However, Murphy disagreed forcefully with this reasoning.
“I think there’s both a practical litigation problem they face and a theoretical underpinnings problem,” she said. She added that partisan asymmetry might not be litigable as a violation of a constitutional right.
Furthermore, Murphy observed that the degree of measuring partisan symmetry can be unrealistic, because a vote for a single candidate in a single election does not necessarily guarantee the voter’s party affiliation.
Noting that she saw no difference between the plaintiffs’ current theory and the one that the Supreme Court rejected in a similar case in 2004, Murphy said the heart of the issue is one of constitutional interpretation. Though the Supreme Court has recognized that the Equal Protection Clause of the 14th Amendment restricts gerrymandering on the basis of race, no such constraint currently exists against parties drawing legislative boundaries to benefit themselves. However, Justice Anthony Kennedy, who is widely considered to be the determining vote in Gill, wrote in his 2004 opinion that a standard of determining excessive partisan gerrymandering might still be determined in the future.
Law School professor David Schleicher, who sat with Murphy during Monday’s discussion, pushed back against her arguments, saying that “election law has become wildly untethered from other areas of constitutional interpretation.” He gave as an example the electoral principle of “one person, one vote,” which requires legislative districts within each state to have roughly equal populations. Despite the weaknesses in the principle’s legal justification, Schleicher said that “one person, one vote” is “one of the most treasured parts of our constitutional tradition.”
Schleicher also elaborated on how gerrymandering can undermine our trust in the democratic process. He said Democrats now need about 56 percent of the congressional vote to obtain a majority, a democratic problem if not a constitutional one. Schleicher added that this “institutional bias against parties of the left” represented a cross-national trend resulting from liberal voters clustering in urban areas.
In an interview with the News, Federalist Society President Samuel Adkisson LAW ’18, who also attended the discussion, said he was proud of the event’s educational impact, and added that the debate was designed such that anyone could come to be informed and to discuss the varied dimensions of gerrymandering.
Josh Woods LAW ’19 agreed with Murphy’s forecasts and said there does not seem to be much constitutional basis to the plaintiffs’ arguments.
“It tickles a lot of people’s conceptions of fairness,” he said.
Oral argument for Gill v. Whitford is scheduled to begin Oct. 3.
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