Media, Law & Policy

Can Judges Rule on Gerrymandering and Stay Non-Political?

Thursday, March 22, 2018, By Ellen Mbuqe

Professor Keith Bybee, a legal scholar at Syracuse University who studies issues around gerrymandering and perceptions of judicial bias, is available to discuss the legal issues of Benisek v. Lamone which will be argued before the Supreme Court on Wednesday, March 28.

The case examines whether Democrats redrew Maryland’s 6th congressional district to shift political control from Republicans to Democrats. Gerrymandered districts have been in the news with the latest coming out of Pennsylvania where state judges ruled that the current state congressional map is unconstitutional. In a retaliatory step, a Pennsylvania state legislator introduced legislation to impeach the four judges who voted that the map was unconstitutional.

“The design of district lines will play a big role in upcoming elections, and the Court’s intervention comes with a significant risk of damaging the institution’s reputation for impartiality,” Bybee says.

“One way out of the bind is for the Court is to come up an easily understandable and administrable rule that doesn’t seem to have immediate partisan consequences – the old ‘One person, one vote’ rule met this standard as a response to malapportioned districts,” says Bybee.

“Without such a rule, the Court can try to sustain its legitimacy by striking down gerrymanders engineered by Republicans and Democrats alike. In this sense, Benisek is ‘good news’ for the Court’s reputation as an impartial arbiter because it shows that the Court isn’t limiting itself to districting schemes that favor Republicans,” says Bybee. “If the Court is bent on scrutinizing partisan gerrymandering, it may be that the best the justices can hope is to achieve an appearance of impartiality through a ‘curse on both your houses’ approach.”

Bybee is the author of Mistaken Identity: The Supreme Court and the Politics of Minority Representation, Bench Press: The Collision of Courts, Politics, and the Media, All Judges Are Political – Except When They Are Not: Acceptable Hypocrisies and the Rule of Law and How Civility Works.

Bybee is available to speak to media on this issue. Please contact Ellen James Mbuqe, director of news and PR at Syracuse University, at ejmbuqe@syr.edu or 315.443.1897.