October, 2017
Berlin -- The world is watching the Wisconsin gerrymandering case Gill v. Whitford, as its outcome may foretell the direction of democracy in the United States.
Chief Justice Roberts has made two unfortunate statements about the case. His first was to suggest that the Supreme Court should avoid setting limits on gerrymandering for fear that it would appear to favor Democrats. Surely he knows Democrats in Maryland are among the worst offenders of gerrymandering and it is the practice of it by any party that is at issue. His second was a cheap shot at the social sciences, calling quantitative analyses of gerrymandering "gobbledegook." It is the sophisticated application of such analyses on the part of the perpetrators that is the problem; its solution will necessarily involve quantitative limits.
How inappropriate for someone in the legal profession to disparage careful measurement in the empirical sciences. Courts should welcome standards beyond their own subjective "reasonable person" or "we know it when we see it" tests.
Many countries have struggled with gerrymandering, Germany included. At the beginning of this century, the SPD gerrymandered representation away from the PDS around Berlin. The CDU won so many districts in national elections in 2009 that its representation in the Bundestag was out of proportion to the national vote. The disparity was so unfair that the federal constitutional court required changes in subsequent elections as to the calculation of the Überhangmandate.
Decisions by courts in other countries are not precedents for U.S. courts. The German top court's decision applied a remedy not available to U.S. courts, which is another reason not to draw parallels. Nevertheless, German democracy is a creature of western thought and practice (see the previous post), and its attention to fairness in matters of gerrymandering is worthy of more than out-of-hand dismissal. May our own Supreme Court likewise take the appropriate notice of fundamental fairness in its Gill decision.
