Does the Constitution Prohibit a State from Engaging in Extreme Partisan Gerrymandering in Drawing Its Legislative Districts?
Does the Constitution Prohibit a State from Engaging in Extreme Partisan Gerrymandering in Drawing Its Legislative Districts?
The Wisconsin legislature redrew its state Assembly districts in the wake of the 2010 Census. The legislature took into account traditional redistricting criteria; it also considered politics. The resulting Assembly map was an extreme partisan gerrymander that resulted in significant overrepresentation for the majority party (as compared with the statewide vote) and effectively locked in majority-party control of the Assembly. Voters from 11 Assembly districts sued, arguing that the map violated the First and Fourteenth Amendments.
Docket No. 16-1161
Argument Date: October 3, 2017
From: The Western District of Wisconsin
by Steven D. Schwinn
The John Marshall Law School, Chicago, IL
Up to now, the Supreme Court has declined to rule on cases alleging partisan gerrymandering, because the Court lacks a sufficiently determinate test to judge when a partisan redistricting plan goes too far. In other words, these cases raise a nonjusticiable political question. This case presents the Court with a test, however, and an example of extreme partisan gerrymandering. As a result, the case gives the Court an opportunity to reconsider whether it will hear partisan gerrymandering claims and, if so, how it will judge them.
In January 2011, the Wisconsin legislature began the task of drawing new state legislative boundaries based on results of the 2010 Census. Wisconsin Senate Majority Leader Scott Fitzgerald and Speaker of the Wisconsin Assembly Jeff Fitzgerald retained attorney Eric McLeod and a private law firm to assist with the effort. In April 2011, after they received Census data from the Legislative Technology Services Bureau, staff members from the Majority Leader’s and Speaker’s offices worked with a consultant and a political science professor to begin drafting the new map in a law firm office they called the “map room.”
(The courts drew the then-existing map, based on the 2000 Census, and the immediately preceding map, based on the 1990 Census, because the politically divided state government was unable to pass redistricting plans of its own. But in 2010, for the first time in over 40 years, Republicans controlled both houses of the state legislature and the governor’s office. This gave promise that the government could pass a plan without the involvement of the courts.)
In fashioning the new legislative districts, the map-drawers endeavored to comply with the “one-person, one-vote” principle and the Voting Rights Act; they also considered traditional districting principles like compactness and contiguity. Politics was another factor. In particular, the map-drawers drew legislative districts such that Republicans could win a disproportionate number of seats in the Assembly as compared to their portion of the overall, statewide vote.
The legislature passed the map-drawers’ plan, and the governor signed it. The map was published as Wisconsin Act 43 on August 23, 2011.
In the first election under Act 43, in 2012, Republicans won 60 out of 99 seats in the Assembly with just 48.6 percent of the statewide vote. In the next election, in 2014, Republicans won 63 of the 99 seats with just 52 percent of the vote.
Twelve Wisconsin voters, who resided in 11 legislative districts throughout the state, sued state officials in a three-judge federal district court, arguing that the Assembly map was an excessive political gerrymander in violation of the First and Fourteenth Amendments. The plaintiffs argued that the map-drawers used two gerrymandering techniques to ensure that Republicans would win a disproportionate number of Assembly seats. First, they claimed that the map-drawers “packed” a small number of districts by concentrating Democrats in those districts; this would ensure that Democrats would win in those few districts with an overwhelming majority. Next, they claimed that the map-drawers “cracked” Democratic populations among many other districts, so that Democrats would fall just short of a majority in each one of those many districts. The plaintiffs argued that these techniques resulted in “wasted” votes—those excess votes for a winning candidate in a packed district, and those votes for a losing candidate in a cracked district—and that the wasted votes for Democrats significantly outnumbered the wasted votes for Republicans. (The plaintiffs call the difference between Republican wasted votes and Democratic wasted votes the “efficiency gap.”)
The plaintiffs incorporated the efficiency gap into a proposed three-part test to determine when a partisan gerrymander is unconstitutional. First, plaintiffs would have to show that a state had an intent to gerrymander for partisan advantage. Second, plaintiffs would have to prove a partisan effect. (The plaintiffs here proposed that an efficiency gap greater than 7 percent should be presumptively unconstitutional.) Third, if the plaintiffs carried their burdens at the first and second steps, the state would have to show that the plan resulted from “legitimate state policy” or “the state’s underlying political geography” in order to avoid a conclusion that the map was unconstitutional.
The court adopted the basic framework of this test, but modified the second step slightly: it looked to both the efficiency gap and other evidence (including social science evidence) for the partisan effect. Applying the test, the court ruled that (1) the map was designed with discriminatory intent, (2) the map caused a “large and durable” discriminatory effect, and (3) there was no neutral way to explain this effect. The court enjoined the state from using Act 43 and ordered that it adopt a new plan by November 1, 2017.
The Supreme Court stayed this order, however, and agreed to hear the case on the merits.
There are four issues in the case. Let’s take them one at a time.
Do the Plaintiffs Have Standing to Sue?
The state argues that the plaintiffs lack standing and that the case should be dismissed. It says that the plaintiffs, who are individual voters in only 11 Assembly districts, have standing to challenge only the districts where they vote and not the entire Assembly map. The state claims that the plaintiffs have suffered a concrete and particularized harm (required for standing) only in the district where they live or vote and that they have not suffered a harm in other Assembly districts “on the theory that [they] want more Democrats for [their] Assembly or House member to caucus with.” The state says that this is consistent with standing requirements for plaintiffs who bring racial gerrymandering claims and that granting the plaintiffs’ standing in this case would perversely favor challenges to political gerrymandering over challenges to racial gerrymandering.
The plaintiffs counter that every partisan gerrymandering case before the Court has been a statewide challenge, and the Court has never suggested that the plaintiffs lacked standing in those earlier cases. Moreover, the plaintiffs say that their claim (and thus their harm) is “unquestionably statewide: the intentional, severe, durable, and unjustified dilution of Democratic votes throughout Wisconsin.” The plaintiffs contend that racial gerrymandering claims are different, because they allege that race was used in a district-specific way—in drawing one or more particular legislative districts—and because the harm in those cases involves racial classification (and not, as here, statewide voter dilution).
Does the Case Raise a Nonjusticiable Political Question?
The state argues that the case raises a nonjusticiable political question and that the case should be dismissed. The state says that a majority of justices in Vieth v. Jubelirer, 541 U.S. 267 (2004), “definitively concluded that such claims were nonjusticiable…or could eventually prove to be so.” The state claims that the courts have not been able to identify determinate legal standards for judging political gerrymanders and so should stay out of it (and instead leave it to the state legislatures). The state contends that the district court’s test is not sufficiently “comprehensive and neutral” and has no support in the history or practice of redistricting.
In response, the plaintiffs argue that the district court’s test is sufficiently “discernible and manageable” for the Court to hear the case. As to discernibility, the plaintiffs say that the test well identifies when partisan gerrymandering dilutes the electoral influence of a group of voters (in violation of the Equal Protection Clause) and when it penalizes voters because of their political beliefs (in violation of the First Amendment). The plaintiffs claim further that the test is symmetrical with regard to partisan politics; that it is comprehensive, in that it can apply to any district plan; and that it is neutral insofar as it treats the political parties alike in converting their votes to legislative seats. The plaintiffs add that the district court’s test is “rooted in the Court’s partisan gerrymandering case law.”
As to manageability, the plaintiffs say that the test’s intent and justification prongs have already been applied in other redistricting situations, “without any apparent difficulty.” They claim that the effect prong is manageable, because courts can measure a gerrymander’s partisan effects with readily available social scientific techniques. The plaintiffs assert that the district court’s test will only ban “both parties’ most egregious gerrymanders,” so it will not overreach and will act as “a stalking horse for partisan interests.”
Did the Plaintiffs Articulate a Sufficiently “Limited and Precise” Standard?
The state argues that even if the plaintiffs have standing and even if the case is justiciable, the Court should dismiss the plaintiffs’ challenge because they have not stated a “limited and precise” legal standard. The state says that the plaintiffs’ proposed test for measuring unconstitutional partisan gerrymandering is a hodge-podge of unreliable social scientific measures that a plurality of the Court previously said “failed to articulate a ‘reliable measure of fairness.’”
The state claims that the plaintiffs’ first-proposed test (giving greater weight to the efficiency gap) fares no better. The state says that this approach requires a nearly exact proportional increase in legislative seats for each increase in the vote—a “hyperproportionalism” that fails to account for other features of a state’s political landscape. In addition, it asserts that this approach “would find that one out of every three legislative maps drawn in the last 45 years has impermissible partisan effect” and would disproportionately “overlook” plans drawn by Democrats.
The plaintiffs retort that the district court test is sufficiently limited and precise for the same reasons it argues that the test is judicially manageable and that the case therefore does not raise a political question.
Is Act 43 Valid Because It Complies with Traditional Redistricting Principles?
The state argues that the Court should uphold Act 43 because it complies with traditional redistricting principles, even if it also considered politics. The state says that a majority of justices in Vieth who would have heard a partisan gerrymandering claim would have required a plaintiff to show that the legislature did not comply with traditional neutral redistricting principles. The state says that the plaintiffs’ claim here should fail for that reason alone—because the state did incorporate traditional principles. As proof, the state notes that “Act 43’s results are generally comparable to those that obtained under the immediately prior court-drawn map.”
The plaintiffs argue that under Vieth noncompliance with traditional redistricting criteria is not an element of a partisan gerrymandering claim. Quoting the Vieth plurality, they say that “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.”
Should the Court Remand the Case?
Finally, the state argues that the district court wrongly concluded that Act 43 had an impermissible partisan effect because it locked in a Republican majority. The state says that this “entrenchment” approach is foreclosed by Vieth and that they did not have a sufficient opportunity to litigate the issue below. The state urges the Court to remand the case for further proceedings if it adopts an entrenchment approach.
The plaintiffs respond that the Court should not remand for further proceedings on entrenchment, because the parties already had an opportunity to argue the issue. “[F]rom the very beginning of the case, both Appellees and the district court made clear their emphasis on the durability of a party’s advantage.”
It’s hard to overstate the potential significance of this case, especially given today’s political climate. That’s because states are responsible for drawing their own legislative maps and the boundaries for their congressional districts (usually every ten years, after the Decennial Census results come out), and most states draw those lines based at least in part on politics. (Thirty-seven states draw their districts in the state legislature; the others use some form of an independent or political commission.) Up until now, the Court has declined to intervene. But if the Court changes it tack, this could substantially alter the states’ political calculus and even upend their practices, depending on how the Court would rule.
The plaintiffs certainly recognize the potential significance of the case and have worked to narrow it in order to assuage any concerns of judicial overreach. In particular, they have crafted a novel approach to measuring when a political gerrymander goes too far, the efficiency gap. As they argue, it is a determinate, even precise, approach and, taken with other social science evidence, comes as close to measuring the partisan effects of a gerrymander as any approach that we have seen. Moreover, the plaintiffs have found a state legislative map that represents an extreme form of political gerrymandering that should, among any districting map, at least raise the Court’s constitutional eyebrow as to its partisan effects. Together, the relatively determinate test and the stark political effects of the Assembly map make for perhaps the strongest argument that the Court can safely weigh in on political gerrymandering. In short, all this allows the plaintiffs to say that the Court can come to the merits in this dramatic case without undoing every other political gerrymander throughout the country. (Indeed, the plaintiffs point out in their principal brief that their test “actually would have allowed plaintiffs to challenge, at most, one-tenth to one-fifth of [over two hundred state house maps between 1972 and 2014].”)
It is important to remember that, over the long term and everything else being equal, judicial intervention in political gerrymandering claims does not necessarily favor either major political party. Because both parties engage in political gerrymandering, and because either party could control a state legislature, judicial intervention could frustrate either party’s political map-drawing. As a result, this case is not necessarily political. Nevertheless, if the Court decides that it can intervene, depending on how it rules, that intervention may be seen as a victory for Democrats, given that Republicans have the current edge in state legislatures (and, in particular, in Wisconsin).
Aside from justiciability, the state has given the Court other ways to rule in its favor. Thus, the Court could rule that the plaintiffs lack standing, that they failed to articulate a sufficiently “limited and precise” standard, that the map withstands judicial scrutiny because it is based on traditional redistricting criteria (even if it is also based on politics), and that the state did not have a sufficient opportunity to argue the “entrenchment” issue below. The Court could dodge the core gerrymandering question by dismissing or remanding the case on any one of these grounds. If so, this potentially path-breaking case could simply fizzle out, and we could face extreme partisan gerrymandering like that in Wisconsin (or even more) in the next round of redistricting, just a few short years away.
Steven D. Schwinn is a professor of law at the John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at firstname.lastname@example.org or 312.386.2865. PREVIEW of United States Supreme Court Cases, pages 26–29. © 2017 American Bar Association
In Support of Appellants Beverly R. Gill, et al.
In Support of Appellees William Whitford, et al.
IN SUPPORT OF NEITHER PARTY