Before the end of June, and possibly within the next week, the Supreme Court will announce its decision in the partisan-gerrymandering case of Whitford v. Gill. Whitford is Wisconsin’s starkly Republican contribution to the ongoing national battle over the principle that, as Justice Ginsburg has said for the Court, “...voters should choose their representatives, not the other way around.”
(Note: All of the papers in Whitford - from the original complaint to the briefs of the parties and all the intervenors - can be found here, at the site of the Campaign Legal Center, which provides members of the plaintiffs’ legal team.)
Representatives Choose Their Voters in Wisconsin
The primary facts of Whitford, drawn from the Complaint, present a textbook case of representatives choosing their voters:
First, the Current Plan was not the result of an ordinary political process, where a bill is formulated through a give-and-take between political adversaries and subject to open debate. Instead, it was drawn up in secret by the Legislature’s Republican leadership, without consultation with Democratic leaders or rank-and-file members of either party, with the purpose and intent of altering what was already a favorable map to maximize the Republican Party’s partisan advantage. Then the proposal was rammed through the Assembly, without any opportunity for real debate.
Second, the Current Plan is also an outlier by another measure of partisan symmetry—partisan bias. Partisan bias is the difference in the share of seats that each party would win if they tied statewide, each receiving 50% of the vote. In 2012, there was a 13% bias in favor of Republicans; in a tied election, Republicans would have won 63% of the Assembly seats, with Democrats winning only 37%. In 2014, there was a 12% bias in favor of Republicans.
There are more details available about the Wisconsin legislature’s contracting out its districting process to avoid scrutiny, input, and participation from Wisconsin Democrats and the general public. They can be found at paragraphs 31-43 of the Complaint and at pages 4-10 of the plaintiffs’ opening Brief to the Court.
Plaintiffs' Civil-Rights Injuries from "Cracking and Packing"
The plaintiffs’ theory of the constitutional injury they have suffered is two-fold. First, they contend,
The Current Plan is a partisan gerrymander so extreme that it violates Plaintiffs’ Fourteenth Amendment right to equal protection of the laws. The Current Plan intentionally and severely packs and cracks Democratic voters, thus disproportionately wasting their votes, even though a neutral map could have been drawn instead. Accordingly, Wisconsin’s Act 43 deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988.
Second, they argue that,
Plaintiffs and other Democratic voters in the state of Wisconsin have a First Amendment right to freely associate with each other without discrimination by the State based on that association; to participate in the political process and vote in favor of Democratic candidates without discrimination by the State because of the way they vote; and to express their political views without discrimination by the State because of the expression of those views or the content of their expression.
Wisconsin Act 43 violates the First and Fourteenth Amendments because it intentionally uses voters’ partisan affiliation to affect the weight of their votes. By taking the actions described above, the drafters of the Current Plan deliberately discriminated against plaintiffs and other Democratic voters because they are Democrats and have voted for and will vote for Democratic candidates and because of the positions they have expressed and will take on public affairs — that is, because of their views and the content of their expression.
By excessively and unreasonably cracking and packing groups of Democratic voters to intentionally weaken their voting power, the State of Wisconsin discriminated against Democratic voters, including the plaintiffs, on the basis of their voting choices, their political views, and the content of their expression.
Notwithstanding the relentless opacity and extreme partisanship of the Wisconsin Republicans’ districting process and result, it is uncertain whether the Court will declare that Wisconsin’s partisan gerrymandering is unconstitutional and, in the same judicial breath, deliver specific directions for correction.
The Court has held that partisan gerrymandering is “justiciable”: a subject where the Constitution permits federal court courts to adjudicate disputes. A majority of the current nine Justices view partisan gerrymandering as justiciable, but perhaps only a bare majority of five of them.
Will the Court Rule that Partisan Gerrymandering is Unconstitutional?
However, as noted here and many other places, the Court has never held any specific instance of partisan gerrymandering to be itself unconstitutional without other constitutional defects, such as discrimination against voters of color. And, in early 2018, the Court summarily and uninformatively stayed a lower-court order requiring North Carolina to redraw its district boundaries to cure partisan gerrymandering, meaning its gerrymandered district boundaries likely will remain in effect through the 2018 elections.
That said, in a 2015 case affirming Arizona voters’ power to create a redistricting commission separate from the state legislature, a majority of the Court reminded its audiences that the Constitution’s framers were concerned about the possibility of partisan gerrymandering:
The dominant purpose of the Elections Clause [of the U.S. Constitution], the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation...The Clause was also intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate. As Madison urged, without the Elections Clause, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” ...The problem Madison identified has hardly lessened over time. (Emphasis added.)
The majority in that case included Justice Anthony Kennedy, who is still on the Court. As discussed below, he figures significantly in the Court’s current consideration of Whitford.
If earlier gerrymandering decisions are predictors of the Whitford decision, we literally might learn the individual views on gerrymandering of each of the Justices on the Court. In the Court’s last major partisan gerrymandering decision in 2006, League of United Latin American Citizens v. Perry (“LULAC”), the Court issued six overlapping and diverging opinions, joined by various coalitions of Justices, chiefly focusing on how Texas’s districting affected voters of color. This time, they might splinter again into different factions over the issues in the case.
The membership of the Court has changed since LULAC: Justices Stevens, Souter, and Scalia have been replaced by Justices Kagan, Sotomayor and Gorsuch. It’s facile, but generally accurate, to describe these changes as, “two liberals and one conservative replaced by two liberals and one conservative.”
The other Justices who participated in the LULAC decision remain on the Court: Chief Justice Roberts, Alito, and Thomas, who appear to be hostile to federal litigation over partisan-gerrymandering, and Justices Ginsburg and Breyer, who believe complaints about partisan gerrymandering may be adjudicated by the federal courts.
And Justice Kennedy is still on the Court.
Will Kennedy Be The Swing Vote?
For better and worse, the lineup card of the Court matters. A significant feature of the Whitford case is how plaintiffs' evidence and arguments aim to win the support of Justice Kennedy, the Court’s current and frequent swing-voter.
Kennedy wrote the partially-prevailing opinion in the LULAC case, which was joined by four other Justices (Stevens, Souter, Ginsburg, and Breyer). These five Justices concluded that partisan gerrymandering was justiciable and could be unconstitutional, but they didn’t find it in LULAC. More significantly, as noted here, Justice Kennedy believed that the Court did not have before it a straightforward and robust metric for finding partisan gerrymandering and assessing its intensity for constitutional analysis.
The Whitford case appears to give the Court (and, perhaps, Justice Kennedy) one such metric: the “efficiency gap,” developed by a political scientist and a law professor who also serves as one of the plaintiffs’ attorneys in Whitford. Per the Complaint, plaintiffs offer the efficiency gap as a measure of partisan gerrymandering to meet Kennedy’s concerns
The basic attributes of the efficiency gap metric are straightforward. (Note: When reading the example below, keep in mind that the example simplifies its arithmetic and results to whole numbers by assuming that only 50% of the votes are needed to win. As the authors note, when the arithmetic assumption is changed to 50% +1 vote, the results add a decimal place but no major changes ensue. These decimal points shrink further when the large numbers of votes in real elections are used as inputs for the metric.)
Take a state with 10 districts of 100 voters each, in which Party A wins 55 percent of the statewide vote (that is, 550 votes). Assume also that Party A wins 70 votes in districts 1–3, 54 votes in districts 4–8, and 35 votes in districts 9–10, and that the remaining votes are won by Party B. Then Party A wastes 20 votes in districts 1–3, 4 votes in districts 4–8, and 35 votes in districts 9–10. Similarly, Party B wastes 30 votes in districts 1– 3, 46 votes in districts 4–8, and 15 votes in districts 9–10. In sum, Party A wastes 150 votes and Party B wastes 350 votes.14 The difference between the parties’ wasted votes is 200, which when divided by 1,000 total votes produces an efficiency gap of 20 percent. Algebraically, this means that Party A wins 20 percent (or 2) more seats than it would have had the parties wasted equal numbers of votes.
Among other tests of its statistical validity, the authors of the efficiency-gap metric ran it on datasets for numerous election results since 1972 and ascertained that it accurately reflects the generally small partisan lean present in most districting plans since 1972, but also captures the increasing drift toward partisan gerrymandering since 2012, especially in Red states.
There is much more about the efficiency gap here (its original presentation in a law review article) and here (a review by its authors of methodological criticisms and their comparison of the gap metric to other gerrymandering metrics). It’s noteworthy that the creators of this metric think the efficiency gap is the best extant tool in analyzing gerrymandering data, but they also acknowledge the value in using other available metrics for testing for gerrymandering, because their results generally complement and confirm each other.
History Is A Dark Predictor
Notwithstanding the simplicity, clarity, and utility of the efficiency-gap metric, and the availability of other statistical tools that can assess the severity and durability of partisan gerrymandering, it’s advisable for proponents of voter-rights to prepare for a worst-case scenario in Whitford.
Several of the Court’s recent decisions on the rights of individual voters vis-a-vis the state and corporations don’t bode well for a decision prohibiting partisan gerrymandering. The Court has allowed states to make it harder for citizens to register and vote and has permitted a tidal wave of dark money in politics.
This tendency is evident in the Court decision in Shelby v. Holder on the Voting Rights Act (essentially eliminating pre-clearance by the U.S. Department of Justice for legislative districting plans in states that had a long history of racial discrimination at the ballot box); in decisions allowing states to enact Voter ID laws (such as Crawford v. Marion County Elections Board), even in the near total absence of provable vote-fraud; and its Citizens United decision.
On the other hand, the Court declined to intervene when the Pennsylvania Supreme Court, on state-law grounds, replaced the gerrymandered Congressional districting map created by the Republican-controlled legislature with a more balanced map.
In short, a closely divided Court apparently is pulled in different directions on voters’ rights and powers, and, specifically, on partisan gerrymandering.
A majority of the Court, therefore, might conclude again that partisan gerrymandering is justiciable, but also find the highly gerrymandered Wisconsin districting plan is constitutionally tolerable. If that happens, proponents of voting rights probably will have to rely only on the kindness of state legislatures that broaden voting rights by enacting, for example, automatic voter registration, or on state supreme courts that, by court-imposed plan, limit partisan gerrymandering.
On the same side of the ledger is a second frustrating two-pronged possibility: the Court declares partisan gerrymandering as practiced in Wisconsin to be unconstitutional, but it cannot agree on a remedy. Or, the Court intentionally leaves construction of the remedy to the lower courts and the same Wisconsin public officials who gerrymandered their state in the first place.
Whitford might end well for opponents of partisan gerrymandering, but it’s unwise to count on that happening. There are too many ways the Court might leave Wisconsin’s legislative boundaries intact for the foreseeable future.
Partisan gerrymandering will more likely end only when voters elect legislative majorities that resist the siren-song of incumbency and enact laws that prohibit unconstitutional impairment of our right to vote.