State & Local Law News

Partisan Gerrymandering’s Close Encounter with Gill v. Whitford: A Manageable Standard at Last?

by Jessica G. Brouckaert & Benjamin E. Griffith

“[Gill v. Whitford is] the most important case the Supreme Court will hear this term.”

—Ruth Bader Ginsburg

The right to vote is fundamental to democracy. It is heavily guarded by the Constitution, Bill of Rights, and countless Acts of Congress.1 Our Founding Fathers went to great lengths to safeguard the right to vote; many jeopardized their own liberty and even gave their lives for the ability to engage in the political process. Now, this long-acknowledged right is exploited and even denied to some simply based on where they live. The effects are being felt by voters in politically gerrymandered districts resulting in less political engagement nationwide.2

Voter apathy is a growing phenomenon across the nation, especially in predictably “safe” districts, where some individuals no longer believe their vote makes a difference. Why are these districts “safe”? Voters living in the same district and having similar values often cast similar votes on Election Day. In some cases, this is organic, purely based on the demographics of population, but in a growing number of districts, it is a man-made phenomenon resulting from partisan gerrymandering. In the 2016 presidential election, in the 14 swing states, an average of 65.3% of eligible voters cast ballots, while in the 36 other states and Washington, D.C., turnout averaged only 56.3%.3 Partisan gerrymandering is a phenomenon that degrades the influence of groups of voters on the political process, arguably exacerbates factionalism, promotes political gridlock and negatively affects the core policymaking function of legislative bodies. It shows “telltale signs of interference”4 as when an opposition party has a tendency to win by a landslide in a packed district but loses by a narrow margin in a cracked district. Packing occurs when voters of the opposing party are concentrated in one district, reducing their voting power in other districts. Cracking occurs when voters of the opposing party are spread out across many districts, thus diluting their voting power.

Despite serious federalism implications when the courts intervene in the redistricting process, demand for institutional accountability may force an end to judicial inaction over legislative district lines drawn to maximize the power of the incumbent party. A state legislature dominated by one political party may choose to “pack” and “crack” voters into different legislative districts to effectively freeze out candidates of the rival party. With the emergence of big data, partisan gerrymandering is now science-based political warfare. Extreme partisan gerrymandering can place an unbearable burden on the representational rights of substantial groups of voters, those who are effectively frozen out of the political process because of how they voted previously or because of the political party with which they were affiliated.5 When implemented statewide, partisan gerrymandering can erode the responsiveness of government, diminish faith in enduring institutions, and thereby determine the outcome of elections for many years, locking in policy decisions and implications for a generation or more.

Voters feel disenfranchised when the government that exists to serve them undermines one of their most fundamental rights. New York Governor Adlai Stevenson once said: “Public confidence in the integrity of Government is indispensable to faith in democracy; and when we lose faith in the system, we have lost faith in everything we fight and spend for.”6

The public view of the right to vote has depreciated.7 Among the causes is most certainly partisan gerrymandering. This problem will continue to worsen until its causes are corrected and the public trusts the integrity of its elections and government.

History

Partisan gerrymandering dates back to the first Congress. In 1788, Patrick James and his Anti-Federalist allies drew the boundaries of Virginia’s 5th Congressional district to include counties that politically opposed James Madison.8 Their attempt to keep Madison out of Congress failed, but they created the process that would later be named “Gerrymandering,” after James Madison’s vice-president, Elbridge Gerry. Gerry’s efforts to persuade wavering middle colony delegates to support independence during the summer of 1776 evoked John Adams’ praise: “If every man here was a Gerry, the liberties of America would be safe against the gates of earth and hell.”9 Following years of effusive praise, political growth, and experience, as Governor of Massachusetts Gerry signed a redistricting plan to ensure his party’s (Republican) domination of the state senate.10 The districts were so oddly shaped that a local newspaper cartoon depicted districts with a beak, talons, and wings dubbed the “Gerry-mander.”11 The “Gerry-mander” worked: Republicans won 29 seats while the Federalists won only 11.12 Partisan gerrymandering has been challenged over the years with mixed results, while the Supreme Court has repeatedly recognized racial gerrymandering as unlawful.13

Between the Reconstruction Era and the mid-20th century, racial gerrymandering emerged predominantly in the South as a way to prevent African-Americans from electing their preferred candidates.14 District lines were drawn to reduce the voting impact of minorities thereby diluting their right to vote.

In 1993, the Supreme Court held in Shaw v. Reno that a political district may not be created in an attempt to segregate voters predominantly on the basis of race—effectively rendering racial gerrymandering unlawful.15 The Court found that racial gerrymandering violates the Equal Protection Clause when the reapportionment plan cannot rationally be understood as anything other than an attempt to segregate voters based on race.16 The Court’s decision in Miller narrowed Shaw, holding that a redistricting plan’s boundaries when drawn for the primary purpose of segregating voters by race violates the Fourteenth Amendment.17 Applying Miller, the standard for racial gerrymandering is clear and entails application of the primary purpose test; however, no workable standard has ever been established for partisan gerrymandering. In addition, racial gerrymandering claims are subject to strict scrutiny because minorities are members of a suspect class. In contrast, no workable, manageable standard has ever been adopted for judicially evaluating a partisan gerrymandering claim, and political affiliation is not a suspect class. In Vieth v. Jubelirer, a plurality of the Supreme Court labeled partisan gerrymandering “nonjusticiable,” finding no workable standard exists.18

Gill v. Whitford

After the 2010 census, the Wisconsin legislature began its redistricting process in accordance with state law. With a Republican majority in the House, Senate, and Governor’s office, legislators enlisted Michael Best & Friedrich, LLP to assist with the reapportionment of the state’s legislative districts.19 Michael Best retained the assistance of Ronald Gaddie, a political science professor at the University of Oklahoma,20 to “build[] a regression model to be able to test the partisan makeup and performance of districts as they might be configured in different ways.”21 The model enabled Gaddie to assess the partisanship of drafts of potential maps.22 The map that became known as Act 43 used 2010 census data from the Legislative Technology Services Bureau (LTSB).23 LTSB also provided the drafters with redistricting software, autoBound, that allowed the drafters to see population, voting-age population, minority group population, and even composite partisan score data in potential districts.24 Using autoBound and the regression model produced by Professor Gaddie, legislators created maps that would ensure potential districts were “close-to-ideal population.”25 The legislators were aware of traditional redistricting criteria like population equality, compactness, and municipal splits. Over several months different redistricting plans were developed and evaluated exclusively in the “Map Room” at Michael Best & Friedrich.26 Professor Gaddie created an “S” curve (as a visual aide) to show how each map would operate with various electoral outcomes.27 Several of these maps were proposed to the Republican leadership in the legislature, who then chose the “Team Map,” also known as the “Final Map,” which projected Republicans would win 59 assembly seats, 38 of which were designated safe, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.28 By comparison, in the 2010 map, 49 seats were “50% or better” for Republicans, 10 less than the Final Map.29 Act 43 passed in the Wisconsin Senate on July 19, 2011, and passed in the Assembly on July 20, 2011. The Governor signed the bill into law on August 23, 2011.30

The plaintiffs, all U.S. citizens registered to vote in Wisconsin, claimed Act 43 violated their First and Fourteenth Amendment rights. They filed a statewide claim against government officials involved with the redistricting process. The plaintiffs were all “supporters of the Democratic party and of Democratic candidates”; they claimed the bill “discriminates against Democratic voters by diminishing the strength of their votes in comparison to their Republican counterparts.”31 To prove injury, the plaintiffs applied the “efficiency gap,” a measure of wasted votes under the new redistricting plan.32

On November 21, 2016, the District Court for the Western District of Wisconsin found the Assembly Districts were unconstitutionally drawn, outlined a method for evaluating claims of partisan gerrymandering, narrowly defined the degree of duration of partisan advantage, and employed the efficiency gap (see below) to measure voting power.33 Defendants appealed to the Supreme Court under 28 U.S.C. § 1253, and the Court granted certiorari on June 19, 2017. Oral argument was heard October 3, 2017.34 Appellants in Gill v. Whitford assert that the district court’s decision violates the Court’s holding in Vieth. Ironically, briefs in support of both the appellants and appellees use racial gerrymandering cases to bolster their arguments.

The District Court’s Test

The District Court for the Western District of Wisconsin created a three-pronged test to determine whether partisan gerrymandering is unlawful:

  1. Was the map drawn with discriminatory intent?
  2. Does the map exhibit large and durable discriminatory effect? and,
  3. Is there any justification other than the pursuit of partisan advantage?35

In answering the second prong of the test, the Court applied the efficiency gap. The efficiency gap is a measure of partisan gerrymandering that tries to quantify into a single number all of the packing and cracking decisions made in a district plan.36 The efficiency gap was developed by Nicholas Stephanopoulos, a professor at the University of Chicago Law School, and Eric McGhee, a research fellow at the Public Policy Institute of California, in an effort to determine when either party gained a systematic advantage in turning votes into seats via a new redistricting plan. The efficiency gap formula is as follows:

Number of Wasted [Incumbent Party] Votes – Number of Wasted [Minority Party] Votes = X X ÷ Total Number of Votes Cast = Efficiency Gap [E.G.] 37

According to Stephanopoulos and McGhee, an efficiency gap of 7% or greater in the first election after implementation of a given plan reflects an impermissible partisan gerrymander.38 For context, in 2012, the Wisconsin plan had an efficiency gap of 13%; in 2014 the plan’s efficiency gap was 10%.39 Using the efficiency gap to answer the second prong of the district court’s test, it is clear the discriminatory effect is large (above the 7% threshold) and durable (continuing into 2014).

The efficiency gap is now under considerable scrutiny. District Judge William Griesbach wrote a comprehensive dissent criticizing the measure on multiple grounds while acknowledging that the process behind the redistricting plan was “secretive” and “one-sided.” Judge Griesbach points out the difficulty of determining intent in the first prong, just as criminal prosecutors often struggle to prove state of mind as an element in criminal cases. Judge Griesbach wrote:

I am unable to accept proof of intent to act for political purposes as a significant part of any test for whether a task constitutionally entrusted to the political branches of government is unconstitutional. If political motivation is improper, then the task of redistricting should be constitutionally assigned to some other body, a change in law we lack any authority to effect.40

Judge Griesbach decried the plurality’s holding, concluding that there are more appropriate measures available to prevent partisan gerrymandering, such as requiring a nonpartisan redistricting panel.41

Judge Griesbach also criticized the court for adopting the efficiency gap because of its lack of credibility, namely, “eleva[tion] of the efficiency gap theory from the annals of a single, non-peer reviewed law review article to the linchpin of constitutional elections jurisprudence.”42 Amici briefs filed in support of the appellants make similar criticisms including a brief by the Republican National Committee in support of the appellants, citing Mahan v. Howell: “Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of possible deviations is permissible, and what is not.”43 Mahan v. Howell was a challenge brought against a reapportionment plan in the Virginia legislature.44 Plaintiff Henry Howell challenged the plan on the grounds that its population deviations were too large to satisfy the “one person one vote” rule established in Reynolds v. Sims, thus constituting racial gerrymandering.45 The Supreme Court found the plan constitutional under the Equal Protection Clause (EPC) as described in Reynolds v. Sims—the Virginia plan could not be judged by more stringent standards of Kirkpatrick v. Priesler and Wells v. Rockefeller than those of congressional standards in Article I, Section 2.46 The EPC requires an “honest and good faith effort” to construct districts of as nearly equal population as practicable.47 According to the unanimous decision, the Virginia plan advanced the policy of reapportionment without sacrificing substantial equality.

Judge Griesbach and multiple amici briefs criticize the efficiency gap for designating lost votes as “wasted,” arguing these votes help shape the larger political debate. Some critics see the efficiency gap as a mere euphemism for defeat at the polls,48 others criticize that it fails to recognize swing voters as a class altogether, accounting only for Republican and Democratic votes. Judge Griesbach also notes that even without the partisan gerrymander Republicans would still control the Wisconsin legislature, making Gill v. Whitford a “particularly poor candidate for court intervention” in that even under previous and more neutral redistricting plans, efficiency gaps have long existed in Wisconsin.49 As to standing, if Republicans would have won regardless, is there injury?

The efficiency gap argument does draw support from political scientists, legal scholars, and even politicians across the nation. American legal scholar and election law expert Rick Hasen is optimistic about the theory stating: “[The efficiency gap] is the last chance to rein in partisan gerrymandering before Justice Kennedy leaves the Supreme Court.”50 A group of prominent lawmakers including Senator John McCain, Governor John Kasich, former Governor Arnold Schwarzenegger, former U.S. Senators Bob Dole, John Danworth, Richard Lugar, and Alan Simpson have signed briefs calling for the Supreme Court to find gerrymandering unconstitutional.51 In total, 48 amicus briefs have been filed for Gill: 13 in support of the appellants, three in support of neither party, and 32 in support of the appellees.

Issues

Gill v. Whitford presents several complex issues for the Court to resolve. First is standing: the defendants claim the district court ignored Vieth by allowing a statewide challenge to Wisconsin’s redistricting plan instead of a district-by-district analysis. Because the plaintiffs do not represent every district in Wisconsin, can they claim harm to a district in which they do not live and cannot vote?52 Second, did the district court ignore Vieth when it found the plan to be an impermissible partisan gerrymander even though it conformed to traditional redistricting principles? There is currently no “safe harbor” for conformance, but, historically, conformance has allowed legislatures to avoid legal challenges. Third, the efficiency gap: did the district court’s application of same again ignore Vieth? The appellants argued the test is very similar to the tests rejected as “not workable” in Bandemer. Last but not least, is the central issue decided in Vieth a binding precedent? Are partisan gerrymandering claims justiciable? In Vieth, the court used the six independent tests laid out in Baker v. Carr for determining whether an issue is a nonjusticiable political question.53 Applying the second test from Baker v. Carr, the Court in Vieth found no judicially discoverable and manageable standard for resolving the issue. Justice Kennedy’s concurrence, however, left the door open for the prospect of a potential solution: “Although there are no clear judicial standards for determining the constitutionality of political gerrymandering, this decision should not foreclose all possibility of future litigation.”54

At Supreme Court oral argument on October 3, 2017, it was clear the Court is concerned with the standing issue. Justice Kennedy made clear lack of standing is a strong argument favoring the appellants,55 grounded on two, not mutually exclusive premises: (1) federal courts lack jurisdiction to entertain statewide political gerrymandering challenges; and (2) plaintiffs cannot be injured by a statewide gerrymander—only by a gerrymander specific to their district. The appellants argued that statewide gerrymandering claims are invalid under Alabama Legislative Black Caucus v. Alabama, Sinkfield v. Kelley, and United States v. Hays.56 In all three cases the Supreme Court rejected voters’ attempts to challenge alleged gerrymandering in districts where they do not reside.57 In Alabama Legislative Black Caucus, the Court limited standing to challenge racial gerrymandering to a plaintiff’s own district boundary, because harms caused by gerrymandering “are personal” to that district’s voters.58 Shaw v. Hunt held that a voter’s standing to challenge his or her own district does not permit him to challenge other districts.59 In League of United Latin American Citizens v. Perry, the Supreme Court rejected an attempt to mount a statewide partisan gerrymandering claim because “partisan aims did not guide every line dr[awn].”60

During oral argument in Gill, Justice Alito proposed a hypothetical to help flesh out the standing issue. He proposed a situation in which in a predominantly Republican town, officials discriminated against a Democratic legislative candidate by not allowing his signs to be put along the roadside, while allowing the Republican candidates’ signs to be displayed. Justice Alito asked, in this “sign” hypothetical, who would have standing for a claim? The candidate? Voters in that district? Would a Democratic voter in another district have standing for a First Amendment claim? Misha Tseytlin, Solicitor General of Wisconsin responded: “the candidate would have standing . . . I’m not so sure about the voters in the district, but probably. But certainly, voters . . . who don’t vote for that candidate . . . would not have standing.”61

If the Court finds standing, it must then decide whether gerrymandering actually occurred. Judge Griesbach did not agree with his court’s majority’s holding that Wisconsin’s redistricting plan “does not violate any of the redistricting principles that traditionally govern the districting process.”62 That may be so, but there is no safe harbor for such compliance and gerrymanders can occur even in districts that appear congruent and compact. In Bush v. Vera, the Supreme Court recognized that “the neglect of traditional redistricting criteria is . . . necessary” for a gerrymandering claim,63 yet the reverse is not also true. Bethune-Hill v. Virginia State Board of Elections held that a plaintiff is not required to show that a redistricting plan conflicts with traditional redistricting criteria in a challenge under the Equal Protection Clause.64 Bethune-Hill can be distinguished from Gill because the former is a racial gerrymandering case. The plaintiffs in Bethune-Hill were members of a suspect class, triggering strict scrutiny.65 A racial gerrymandering claim is analytically distinct from a partisan gerrymandering claim, but with at least one similarity: the prohibited harmful effect of gerrymandering can be found in the district map’s discriminatory dilution of an identifiable group’s opportunity to elect, whether in a partisan dilution or a racial dilution case. In racial dilution, strict scrutiny applies when “redistricting legislation . . . rationally can only be viewed as an effort to segregate the races for purposes of voting, without regard to traditional redistricting principles.”66 Notwithstanding the different standard of review applied to partisan versus racial gerrymandering claims, racial gerrymandering decisions can provide some guidance in predicting the outcomes of partisan gerrymandering claims.67 Strict scrutiny is triggered only if race is the essential basis for redistricting, whereas partisan intent must survive only rational basis review.68

If the Court finds impermissible gerrymandering, the next inquiry goes to measurement of damages, if any. The Supreme Court must decide whether or not to adopt the efficiency gap (EG) as the measure of damages. Criticisms of EG are wide ranging, but the most significant is the claim that it violates the Court’s holdings in Vieth and Bandemer. In Bandemer, the Court rejected a similar theory on the ground it was not “workable.”69 In Vieth, a plurality of the Court held the issue of partisan gerrymandering was nonjusticiable because 18 years of jurisprudence failed to reveal a manageable judicial standard for resolving the issue.70 Critics of EG claim it is a measure of proportional representation—not a solution. The Supreme Court has repeatedly held proportional representation is not a constitutional requirement71 and has never struck down a plan as unlawful, largely because of the absence of a fair test or standard. Adoption of the efficiency gap as the basis for a manageable standard to evaluate a partisan gerrymandering claim would have far reaching consequences, causing a ripple effect. Many states could be subjected to redistricting, potentially disrupting state legislatures across the country for years to come. There is some speculation the Court could find the gerrymander unconstitutional—limiting the holding to “present circumstances” as in Bush v. Gore.72 This approach could result in an avalanche of partisan gerrymandering claims in the courts. The Supreme Court finds itself facing the same question it answered in 2004: are partisan gerrymandering claims justiciable? Precedent in Vieth indicates the answer will be no.73 The mere fact that the Supreme Court granted certiorari in Gill indicates the tables could turn.74

Pending Cases

As noted above, Judge Griesbach called Gill v. Whitford a “particularly poor candidate for court intervention.”75 While a decision in Gill v. Whitford is pending, several cases have been stayed, or are being tried after stay was denied, or are in intermediate appeals.76 If SCOTUS affirms the district court’s decision in Gill, it may dictate the outcome in some or all these cases. The Supreme Court could agree with Judge Griesbach and hear one of these cases that might be a better candidate for Court intervention.

Some election law experts consider the best potential candidate for Court intervention to be Benisek v. Lamone, a single district partisan gerrymandering claim as opposed to the statewide challenge raised in Gill.77 This distinction eliminates the standing argument in Gill, and single district analyses have been successful in multiple racial gerrymandering cases while statewide approaches are often rejected. When the efficiency gap is applied to Benisek, the discriminatory effect is clearly both durable and large.78

Common Cause v. Rucho is another case that could present a better opportunity to create law. Common Cause also is a statewide claim, but the 13 plaintiffs represent each congressional district in North Carolina.79 Like Benisek, this eliminates the standing issue and would allow the claim to proceed regardless of whether the Court determines claims should proceed on a district-by-district basis or allows for statewide claims. The framework proposed in Common Cause is distinct from Gill because it assesses partisan gerrymandering claims only under the First Amendment. The claim in Gill was brought under both the First Amendment and the Equal Protection Clause. Both Common Cause and Benisek are distinct from Gill in that both are challenges of congressional district lines. The Supreme Court has used Article I, Section 2 to invalidate congressional districting plans that violate the one-person, one-vote rule.80

Conclusion

Political gerrymandering claims have been relegated to 30 years of wandering through the judicial wilderness. The time may be at hand for the Court to embrace a manageable standard for adjudicating them. The American political structure as it has developed up to late 2017 is factionalized to an unprecedented extent, amidst heightened political divisiveness rooted in tribalism, racial hostility, and ethnic extremism. Both major political parties bear responsibility for the consequences. Fourth Circuit Judge Niemeyer’s dissent in Benisek v. Lamone, supra, highlights the emerging reality that partisan gerrymandering need not be a partisan issue, despite the fact that Republican-drawn maps in North Carolina, Texas, and Wisconsin have drawn the most attention. The challengers and their amici in Gill can point to Judge Niemeyer’s dissent in Benisek, and it will likely receive much attention from the Justices now that oral argument in Gill is over.81 The political policymaking function of state legislatures and Congress arguably have been adversely affected by the extreme divisiveness that now characterizes our political system. A major consequence of unchecked partisan gerrymandering is that the political process as a whole suffers.82 The culprits are not limited to one political party, but the solution is one that neither of the major political parties can offer. If the Court decides the solution is one that falls to the judicial branch, the Justices likely will overturn Vieth and rule that partisan gerrymandering claims are justiciable and can be evaluated on the basis of a manageable, judicially formulated, and objectively applied standard rooted in the mathematical guidepost provided by the efficiency gap analysis or its equivalent. One scholar recently concluded: “Voters can decide that for themselves. But for voters to decide, their voices must be heard. If the Court wants to honor structural principles, preserve institutional integrity, and respect state legislators, it should adopt clear and coherent partisan gerrymandering rules this term. With 2020 just around the corner, the time for action is now.”83 Alternatively the Court could reverse the district court’s decision, leaving the future of partisan gerrymandering in limbo with no solution for years to come. Regardless, the mere fact the Court granted certiorari in Gill indicates it is concerned with the process of partisan gerrymandering and considers it a problem in need of a solution. It is undoubtedly denigrating our electoral process, negatively affecting voter outlook, and widening the ideological divide in America.

Endnotes

1. The right to vote is protected by the 14th, 15th, 19th, and 24th Amendments, among others, and the Voting Rights Act of 1965, as amended. No political right is better indoctrinated in American policy than the right to vote.

2. Carl Bialik, Voter Turnout Fell, Especially in States That Clinton Won, FiveThirtyEight (Nov. 11, 2016), https://fivethirtyeight.com/features/voter-turnout-fell-especially-in-states-that-clinton-won.

3. Id.

4. Carrie Arnold, The Mathematicians Who Want to Save Democracy, 546 Nature 200, 201 (June 8, 2017), available at https://www.nature.com/polopoly_fs/1.22113!/menu/main/topColumns/topLeftColumn/pdf/546200a.pdf?origin=ppub.

5. Benisek v. Lamone, No. JKB-13-3233, 2017 U.S. Dist. LEXIS 136208 at *77 (D. Md. Aug. 24, 2017) (Niemeyer, C.J., dissenting)(“A committed Republican voter in the new Sixth District might choose to abandon his party, finding his energy better spent supporting moderate candidates in Democratic primaries.”), order entering stay (D. Md. Aug. 24, 2017).

6. Adlai Stevenson, Speech to the Los Angeles Town Club, Los Angeles, CA (11 September 1952), Speeches of Adlai Stevenson (1952), at 31.

7. See supra note 2.

8. National Archives, Madison’s Election to the First Federal Congress, October 1788–February 1789 (Editorial Note), Founders Online, http://founders.archives.gov/documents/Madison/01-11-02-0219.

9. National Archives, From John Adams to James Warren, 15 July 1776, Founders Online, https://founders.archives.gov/documents/Adams/06-04-02-0162.

10. Anna Khomina, Elbridge Gerry and the Original Gerrymander, The Gilder Lehrman Institute of American History Blog, Oct. 10, 2017, https://www.gilderlehrman.org/content/elbridge-gerry-and-original-gerrymander.

11. Id.

12. Id.

13. Unsuccessful Partisan Gerrymandering Cases: Davis v. Bandemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004). Successful Partisan Gerrymandering Cases: Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995).

14. Damion Waymer, How Gerrymandering Black Districts Backfired in the South, Newsweek U.S. Edition, Sept. 17, 2016, at 4:30 p.m., http://www.newsweek.com/how-gerrymandering-black-districts-backfired-south-498036.

15. Shaw v. Reno, 509 U.S. 630.

16. Id.

17. Miller v. Johnson, 515 U.S. 900.

18. Vieth v. Jubelirer, 541 U.S. 267.

19. Whitford v. Gill, 218 F. Supp. 3d 837, 847 (W.D. Wis. 2016).

20. Id.

21. Id.

22. Id.

23. Id.

24. Gill, 218 F. Supp. 3d at 847.

25. Id.

26. Id. at 851.

27. Id. at 847.

28. Id at 851.

29. Gill, 218 F. Supp. 3d at 851.

30. Id. at 853.

31. Id. at 854.

32. Id.

33. Id. at 843.

34. Transcript of Oral Argument at www.supremecourt.gov, Gill v. Whitford (Oct. 3, 2017) (16-1161), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_8m58.pdf.

35. Gill, 218 F. Supp. 3d at 883–84.

36. Nicholas O. Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).

. A partisan gerrymander forces the opposition to “waste” votes by employing cracking and packing. Packing occurs when the votes of one party are concentrated into a district, resulting in “wasted” votes in lopsided victories. Cracking is when the votes of one party are divided among several districts that vote predominantly for the other side. The efficiency gap measures the “wasted” votes by identifying all of the wasted votes in victory and defeat for both parties, calculating the difference between the two sides, and dividing that by the total number of votes cast. The resulting percentage figure is the efficiency gap. Nate Cohn & Quoctrung Bui, How the New Math of Gerrymandering Works, N.Y. Times, Oct. 3, 2017, at https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-math-of-gerrymandering-works-supreme-court.html.

. Stephanopoulos & McGhee, supra note 36.

. Id.

. Gill, 218 F. Supp. 3d at 933.

. In Michigan, a volunteer organization called “Voters not Politicians” is fighting for implementation of a similar panel. The group turned in a petition with 425,000 signatures in support of a ballot proposal to take control of Michigan’s redistricting process from the state legislature. The organization proposes a 13-person redistricting panel composed of four Republicans, four Democrats, and five non-affiliated voters randomly selected from a pool of volunteers should create the district maps for the state. Brian Dickerson, Are Gerrymandering’s Days Numbered in Michigan?, Detroit Free Press, Dec. 24, 2017, at 9:17 AM, https://www.freep.com/story/opinion/columnists/brian-dickerson/2017/12/24/gerrymandering-days-numbered-michigan/969659001.

. Gill, 218 F. Supp. 3d at 947.

. Mahan v. Howell, 410 U.S. 315 (1973).

. Id. at 317.

. Id. at 320.

. Id. at 324; Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969).

. Mahan v. Howell, 410 U.S. at 324.

. Brief of Amicus Curiae Republican National Committee in Support of Appellants, at 28 http://www.scotusblog.com/wp-content/uploads/2017/08/16-1161-tsac-RNC.pdf (quoting Whitcomb v. Chavis, 403 U.S. 124, 153 (1971).

. Whitford v. Gill, 218 F. Supp. 3d at 946; Benisek v. Lamone presents a potentially better scenario for application of the efficiency gap. Proceedings before the three-judge district court in that case have been stayed pending a ruling in Gill.

. The Election Law Blog Podcast: Eric McGhee and Nick Stephanoupolos: Efficiency Gap, Soundcloud (Sept. 3, 2017), https://soundcloud.com/rick-hasen/elb-podcast-episode-18-eric-mcghee-and-nick-stephanopoulos.

. Adam Liptak, Prominent Republicans Urge Supreme Court to End Gerrymandering, N.Y. Times (Sept. 6, 2017), https://www.nytimes.com/2017/09/06/us/politics/prominent-republicans-urge-supreme-court-to-end-gerrymandering.html.

. This article was written before the Supreme Court granted certiorari to Benisek v. Lamone, No. JKB-13-3233, 2017 U.S. Dist. LEXIS 37603 (D. Md. Mar. 16, 2017), a partisan gerrymandering case in Maryland on December 8, 2017. In light of this development we suspect Justice Kennedy may be getting nervous about the justiciability of the statewide claim presented in Gill. Less than two years ago in Alabama Legislative Black Caucus (ALDC) v. Alabama, 231 F. Supp. 3d 1026 (M.D. Ala. 2017), the Supreme Court held statewide partisan gerrymandering claims rather than district by district are “legally erroneous,” denying ALDC’s claim for lack of standing. The plaintiffs in Benisek are all constituents of the challenged congressional district. Before the Court can make a decision on the merits of the partisan gerrymandering claim in Benisek, they will first have to decide whether a single district judge can dismiss a partisan gerrymandering claim by granting a 12(b)(6) motion or if such decisions require a three-judge panel. Based on the decision to grant certiorari we predict they will find the latter.

. In Baker v. Carr, the Court laid out six independent tests, in descending order of importance and certainty, for determining whether an issue is a nonjusticiable political question. Baker v. Carr, 369 U.S. 186 (1962).

. Vieth, 541 U.S. 267.

. Transcript of Oral Argument at www.supremecourt.gov, Gill v. Whitford (Oct. 3, 2017) (16-1161), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_8m58.pdf.

. Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015); Sinkfield v. Kelley, 531 U.S. 28, 30 (2000); United States v. Hays, 515 U.S. 737, 739 (1995).

. Id.

. Ala. Legis. Black Caucus, 135 S. Ct. at 1265.

. Shaw v. Hunt, 517 U.S. 899, 904 (1996).

. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 418 (2006).

. Transcript of Oral Argument at www.supremecourt.gov, Gill v. Whitford (Oct. 3, 2017) (16-1161), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_8m58.pdf.

. Gill, 218 F. Supp. 3d at 940.

. Bush v. Vera, 517 U.S. 952, 963 (1996).

. Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017).

. Facially neutral laws enacted for race-based reasons are subject to strict scrutiny. See Washington v. Davis, 426 U.S. 229, 244–45 (1976).

. Shaw v. Reno, 509 U.S. 630; Miller v. Johnson, 515 U.S. 900.

. Justice Kennedy’s observation in Vieth that “an apportionment’s de facto incorporation of partisan classifications” may indicate the classification was “used in an impermissible fashion.” Vieth, 541 U.S. at 312 (Kennedy, J., concurring).

. Vieth, 541 U.S. at 293, 312.

. See supra note 53.

. Vieth, 541 U.S. 267.

. City of Mobile v. Bolden, 446 U.S. 79 (1982), LULAC, 548 U.S. at 419; Chapman v. Meier, 420 U.S. 1, 17 (1975); White v. Regester, 412 U.S. 755, 765–66 (1973).

. Bush v. Gore, 531 U.S. 98 (2000).

. Vieth, 541 U.S. 267.

. See supra note 52.

. Gill, 218 F. Supp. 3d at 946; Benisek v. Lamone presents a potentially better scenario for application of the efficiency gap.

. Benisek v. Lamone (https://www.brennancenter.org/legal-work/benisek-v-lamone-amicus-brief), Common Cause v. Rucho (https://www.brennancenter.org/legal-work/common-cause-v-rucho), Georgia State Conference of the NAACP v. State of Georgia (https://www.brennancenter.org/legal-work/georgia-state-conference-naacp-v-georgia).

. See supra note 49; Benisek v. Lamone, No. JKB-13-3233, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017).

. Id.

. Common Cause v. Rucho, Nos. 1:16-CV-1026 & 1:16-CV-1164, 2017 U.S. Dist. LEXIS 145590 (M.D.N.C. Sept. 8, 2017).

. Wesberry v. Sanders, 376 U.S. 1, 13–14 (1964).

. Steve Klepper, Judge Niemeyer’s Dissent Is the Real Headline in Maryland Political Gerrymandering Case, Maryland Appellate Blog, https://mdappblog.com/2017/08/24/judge-niemeyers-dissent-is-the-real-headline-in-maryland-political-gerrymandering-case. In addition, Benisek v. Lamone will undoubtedly gain much attention now that the Supreme Court has granted certiorari.

. Devin Daughey, Chris Tausanovitch & Christopher Warshaw, Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies (May 15, 2017), available at http://cwarshaw.scripts.mit.edu/papers/CTW_efficiency_gap_170515.pdf.

. G. Michael Parsons, The Institutional Case for Partisan Gerrymandering Claims, Cardozo Law Review—De Novo (2017), available at http://cardozolawreview.com/content/denovo/PARSONS.39.DeNovo.pdf.

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Jessica G. Brouckaert

Jessica G. Brouckaert is a law student at the University of Mississippi, graduating in May 2018.

Benjamin E. Griffith

Benjamin E. Griffith is principal in the Griffith Law Firm of Oxford, Mississippi, a member of the ABA Board of Governors, and an Adjunct Professor at the University of Mississippi School of Law. He is editor and chapter author of America Votes! Challenges to Modern Election Law and Voting Rights (ABA 2008, 2012, 2016).