Just a few weeks ago the Attorney General of Wisconsin, Brad Schimel, appealed a decision by the U.S. District Court of Western Wisconsin to the Supreme Court. The Supreme Court will now hear a case on the long avoided topic of partisan gerrymandering.
Short History of Gerrymandering in the Supreme Court
Gerrymandering has always been a contentious constitutional topic, and while some of the judges acknowledge that it is an issue with a remedy, there has not yet been an agreed upon standard with which to evaluate and resolve partisan gerrymandering. One of the first cases brought before the Supreme Court on the question of partisan gerrymandering was Davis v. Bandemer (1986), where the Justices assessed the the validity of a claim brought by Indiana Democrats that a reapportionment plan was unconstitutional on grounds that it violated the Equal Protection Clause of the 14th Amendment. Justices were first tasked with determining whether the case was a “justiciable controversy” or a “nonjusticiable political question.” Relying on the precedent of Baker v. Carr (1962) and previous racial gerrymandering cases to determine what is a political question, the Court found the case to be justiciable and found political gerrymandering to be similar in nature to racial gerrymandering. They did, however, note that the differences between racial and partisan gerrymandering might have an effect on the eventual outcome of a case. However, in assessing the merits of the case, the court could not come to a conclusion on how to review similar cases in the future.
The topic remained in limbo for several decades until Vieth v. Jubelirer (2004), where a plurality of judges determined that partisan gerrymandering was a political question because “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable.” Holding that partisan gerrymandering represented a political question would mean overturning precedent set in Davis v. Bandemer (1986), and a plurality did indeed believe that Bandemer was decided incorrectly. The justiciability of partisan gerrymandering was not overturned, however, because Justice Kennedy (while agreeing with the majority that the gerrymandering in the current case was not unconstitutional) held that while a current standard did not exist, he did not want to rule out the possibility of a judicially manageable standard for adjudicating political gerrymandering claims being created in the future. He even brought up the idea that cases brought before the court dealing with partisan gerrymandering might be more successful if challenged on its violation of the 1st Amendment’s freedom of association principle. Kennedy’s opinion is significant because the judges in the U.S. District Court of Western Wisconsin cited it often when ruling in Whitford v Gill.
The Case in Wisconsin
Whitford v. Gill was brought to the courts by the Democratic Party of Wisconsin, which felt that the partisan gerrymandering of the state legislature was unconstitutional and unfairly diluted votes for Democrats statewide. The supposed partisan gerrymandering is a result of Act 43 in the Wisconsin legislature, created by the Republican-controlled government elected in 2010. In previous years, the Democrats were in solid control of the Wisconsin state legislature. When the Republicans finally gained control of both the legislature and executive, they immediately set out to redraw the districts in the state to (according to the plaintiffs and the District Court ruling) ensure a Republican majority for years to come. Past Supreme Court precedent holds that a discriminatory intent must be shown in evaluating violations of Equal Protection and so to assess the validity of the plaintiffs argument, the majority in Whitford v. Gill established that
“the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.”
The court ended up ruling in favor of the plaintiffs, holding that Act 43 was unconstitutional because it violated the rights of the citizens of Wisconsin under the 1st Amendment and the Equal Protection Clause.
The 100+ page ruling first sets out to establish an intent to dilute the votes of Democrats in Wisconsin. Based on the evidence provided to the court through the testimonies of those involved at key stages in drafting Act 43, the court rightly determined that there was a discriminatory intent by the Republican majority government to dilute Democratic votes. The next stage of the decision is where many gerrymandering cases in the past have faltered, and that is proving that the redistricting scheme has the effect of violating the Equal Protection Clause. The plaintiffs in the Bandemer case were unable to establish this because their evidence was all based off of one election. The Supreme Court at the time noted how Indiana was a swing state and so the results of one election were not conclusive enough to prove the effect, and also that disproportionate representation of the state legislature alone was not enough to prove a violation of the Equal Protection Clause. Whitford did not have this problem because, as the judges duly noted, the plaintiffs had gathered evidence from the past 2 elections. The evidence that the plaintiffs provided was not limited to the raw data from the past elections; simply showing disproportion between statewide votes and party representation in the legislature is not grounds for proving Article 43’s unconstitutionality. The plaintiffs provided the judges with a relatively new form of analysis in measuring partisan gerrymandering: the efficiency gap.
Efficiency Gap
The efficiency gap is a tool for measuring partisan gerrymandering created by two professors, Nicholas Stephanopoulos and Eric McGhee. Its authors hold that
It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis.
This new metric sets out to provide a definitive, mathematical way to assess partisan gerrymandering. Its ingenuity lies in how simple it is to calculate. First, it must be determined how many wasted votes each party has in a given election (“Wasted votes are ballots that don’t contribute to victory for candidates, and they come in two forms: lost votes cast for candidates who are defeated, and surplus votes cast for winning candidates but in excess of what they needed to prevail”). Then, they calculate the difference between the wasted votes from each party in that election and divide that number by the total votes cast. Simple, right? When the party in power creates a gerrymandered district map, it will try to maximize the number of wasted votes the opposition party gets in an election and minimize its own. The greater the differential between wasted votes, the larger the efficiency gap will be. A high efficiency gap correlates to the supposed high level of gerrymandering going in in the state or district. A 2% gap would be negligible while a 20% gap would be extreme gerrymandering. Ideally, the efficiency gap in every state should be 0, but this seems difficult and unrealistic given the regional separation of the parties in modern America. This is not to say that it would be impossible to achieve the ideal efficiency gap of 0, just that it might be too much of a burden to put on legislators in states where Democrats are increasingly concentrating in cities and Republicans are becoming more spread out in rural counties. The authors proposed a threshold of 7% for cases dealing with state legislature elections because, “over 95% of plans with an EG of at least 7% will never have an EG that favors the opposite party.”
The court was very careful in its wording when evaluating the plaintiff's claim that the efficiency gap proved a discriminatory effect. Based on analysis done in two of Wisconsin’s elections since the redistricting, the Republicans have maintained control of the legislature with a 13% efficiency gap in 2012 and a 10% gap in 2014. The court clearly acknowledged that the large efficiency gap of Wisconsin’s past two elections was useful as “corroborative” evidence of a discriminatory effect to go along with the discriminatory intent of the Republican plan, but that is about as far as the court went in its determination of the case using the efficiency gap. It explicitly stated that it had not established an efficiency gap level to determine the unconstitutionality of partisan gerrymandering. The court even stated that many of the criticisms of the efficiency gap do have merit and so trying to establish a sweeping precedent with it would be a bit presumptuous. The court is right that there are valid criticisms of the efficiency gap and acted with prudence in not going too far with the idea. Regional divisions between each party’s constituencies is enough to shed some doubt on the idea of using the efficiency gap as the sole determining factor of partisan gerrymandering, and I find it likely that the Supreme Court will agree with the Wisconsin court over this fact. That being said, the Supreme Court will affirm the lower court’s decision which will subsequently establish a new precedent regarding partisan gerrymandering in the United States.
A Familiar Story
It is clear from the written decision that the judges sympathized with Supreme Court Justice Anthony Kennedy’s argument made in the Vieth case a decade ago. They relied heavily on his writings in that case and in previous cases in forming their decision. Kennedy’s main concern in partisan gerrymandering cases is prematurely adopting a standard with which to assess them which might later prove to be inadequate. In Vieth, he was quite hesitant to adopt a new standard but was just as hesitant to proclaim (as the plurality did) that there could be no standard with which the courts could use to assess partisan gerrymandering. Considering how far technology has come in the last 10 years alone, it was naive for the plurality in the Vieth case to make such a proclamation. Kennedy also alluded to the possibility of using the First Amendment, rather than the Fourteenth, to raise constitutional objections of partisan gerrymandering. The federal court in Wisconsin followed suit, and alleviated many of the concerns in the present case that Kennedy might have when evaluating it. This reliance on the judgement of Justice Anthony Kennedy and the alleviation of many of his concerns gives this case a better chance in the Supreme Court than any past case in finally taking action to address partisan gerrymandering. It will be quite a familiar tale, with Kennedy likely being the one to cast the vote to either affirm the lower court’s decision or have a 4-4 tie (which ironically also upholds the Wisconsin Court’s ruling, but doesn’t establish a new precedent on a federal level).
It should be noted that all of these possible outcomes assume that Judge Gorsuch will not be confirmed in time to hear the case, since his vote would likely have little effect on the matter. There is reason to believe that Judge Gorsuch agrees fully with the plurality decision in Vieth, but that does not change the fact that Kennedy’s swing vote could still mean a victory for the plaintiffs. The only impact it would have is in Whitford v. Gill where a 5-4 decision in favor of the defendants would mean Act 43 remains intact instead of a 4-4 decision affirming the Wisconsin Federal Court’s ruling.
While I believe that the Supreme Court will affirm the ruling in favor of the plaintiffs in a 5-3 decision (with Kennedy joining the liberal wing of the court), I find it unlikely that the court will establish the efficiency gap as the new standard for measuring the effect of partisan gerrymandering. There are many valid objections to be made about the efficiency gap as discussed above, and I expect better measures to come along in the future. This does not, however, mean that the efficiency gap cannot be used as corroborative evidence to a case, as shown by the majority in Whitford v. Gill. Although the measure is not perfect, it provides us with a good indication of how severe partisan gerrymandering is in a state.
We Can do Better
The piles of evidence in Whitford v. Gill of a discriminatory intent, along with the substantive evidence of a discriminatory effect that makes use of the efficiency gap gives the Supreme Court all the reason it needs to finally take a stand. In National Federation of Independent Business v. Sebelius (2012), the Supreme Court addressed whether a Medicaid provision in the Affordable Care Act was too coercive in its requiring states to follow certain provisions to gain federal funding. They found that part of the ACA to be too coercive, and ruled it unconstitutional. In doing so, they did not establish a line to demarcate when a provision becomes too coercive. Instead, they used past precedent to establish that there was no need to create a line. “It is enough for today that wherever that line may be, this statute is surely beyond it.” It would be a mistake for the Supreme Court to establish a line where partisan gerrymandering becomes unconstitutional on grounds of discrimination. However, in the case of Whitford v. Gill, there is no need to create such a line or establish the efficiency gap as the arbiter of partisan gerrymandering. Let the Court use the same logic it has used before. Wherever the line determining partisan gerrymandering constitutionality may be, it is clear that Act 43 in the Wisconsin State Legislature has crossed that line.
We should not settle for the undemocratic system we have now of maps being redrawn when a new party claims power in a state to favor their incumbency. There are those who would argue for a fundamental change to the system where an independent party or agency would be charged with redistricting the legislative maps after every census. This is a fight for another day. A fight with questionable constitutionality for states that have gone down that path, and the thought of judges forcing states to take that route seems doubtful. No solution to the situation in Wisconsin will be perfect, but a decision by the Court affirming the lower Court’s decision would be a step in the right direction. We can do better than Wisconsin; we ought to do better.