So in 2021, if there's no check, it's going to be off to the races and we're going to have less democracy as a result.

Hi and welcome to Amicus Slates podcast about the Supreme Court and the law. I'm Dalia Lithwig and I cover the courts for Slate and today we thought we'd have a big deep look at the two voting rights cases that were decided earlier this week.

Gil versus Whitford was the challenge to Wisconsin, partisan gerrymander. That was supposed to be the case of the term. Remember we talked about it that way in October and then it's little cousin, which was Benasek involved a Maryland gerrymander and that was going to give the court cover to decide big, big issues and nonpartisan ways and nothing.

No, no, no, no, no, no, no, no, no. We're going to go back to the court. Nowadays, on Monday, the Supreme Court sent Gil back to the lower courts on the theory that the plaintiffs didn't have standing and in an unsigned opinion, they sent Benasek back saying it was just too soon to decide. So little disappointing what was going to be a landmark voting rights year is just confusing.

So we decided to talk about it today with Paul Smith, who argued Gil for the plaintiffs. Paul is a friend of the show. And on behalf of the campaign legal center, he argued the Wisconsin case before the court, way back in October of 2017. Paul, can you even remember October of 2017? Yeah, barely.

So we'll talk about our hope was that they were decided by January, hoping to get the new districts this year.

Well, so let's start. I start as though we don't know anything and tell us about political gerrymanders. We know because we've talked about racial gerrymanders on this show.

We know that there's a constitutional law and their standards political gerrymanders are harder. Because in 2004, Justice Anthony Kennedy sat down a marker and he said, someday you shall bring me a political gerrymander case that I can decide.

And we have been trying to cough up something that would satisfy him since then. Can you just briefly explain why we thought the Wisconsin case was a lock to get this thing resolved once and for all?

I'm not sure I ever thought it was a lock, but I will explain to you that the difficulty that Justice Kennedy identified back in 2004 was he started from the proposition that we're not going to try to eradicate politics from the redistricting process.

When we have politicians doing the job, it seems silly to tell them don't even think about the political consequences of the lines. But he also was of the view that extreme gerrymandering is unconstitutional indeed. All of the justice is back in the V case. It acknowledged that the difficulty is is drawing the line between sort of politics as usual and extreme gerrymandering.

So if you take that approach, you have a problem of standards, a judicially manageable standards of measurement. And so social science went to work and we were back this year with a series of measurements, most prominently this thing called the efficiency gap, which attempted to give them tools to differentiate between really extreme gerrymanders and politics as usual by allowing you to attach a number to each map and say this one's a 10.

So we were at least 5% in the last 50 years across the country. You can do those kinds of comparisons once you have these measurement techniques. And the hope was that they would say, okay, we're going to start going after the extreme ones and eventually we'll figure out where the line is. That was the hope.

And can you just tell us about what this Wisconsin gerrymandered, the specific one in this case, what the numbers looked like just to give listeners a sense of how really extreme it was.

So the gil case was, it wasn't about the assembly, the lower house in the Wisconsin legislature, which was gerrymandered in 2011 after the Republicans got unilateral control of the state government for the first time in decades in Wisconsin. And decided they wanted to hold on to that.

And so they worked very hard. They had these three guys in a locked room for four months, making them map more and more extreme. And the result was a map that was made effectively impossible for them to lose the majority in this decade.

In 2012, the first time the map was used, it was a good democratic year, the democratic state wide got about 52% of the vote and got less than 40% of the seats, 39% of the seats.

So a super majority of seats went to the Republicans with less than half the votes. Two years later the Republicans got 52% of the vote the same and they got 64% of the seats.

So it clearly was made a huge difference whether you're on the Republican side of the democratic side in terms of how what your ability was to translate votes into seats.

And the district court findings where it would take a political earthquake for the Democrats, they'd have to have upwards of 5860% of the votes statewide, something that never happens in a purple state to take back the majority.

So that sounds fairly extreme. And then I think the Supreme Court surprised us by taking Benasek versus Lamone, that was the Maryland case.

They already had Gil, as you said, we were wondering what was taking so long and then they took the second case that was argued this spring.

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