In an election for seats in the state legislature, who among us would even bother to vote if we knew, before election day, that our preferred candidates’ opponents—unacceptable to us because of their party affiliation—were essentially guaranteed election victories by a U.S. Supreme Court ruling made before a single ballot was even cast?
That is one way of describing the question confronted by the U.S. Supreme Court during a recent oral argument, held on Tuesday, Oct. 17. The nine justices heard the arguments in Gill v. Whitford, a Wisconsin case challenging legislative district lines drawn by the Republican legislature in 2011. William Whitford and the other plaintiffs’ attorneys argued that these districts unfairly favor Republican candidates—giving Wisconsin Republicans the majority in the State Assembly despite getting a few hundred thousand fewer votes for their state legislative candidates.
The Supreme Court has long upheld the principle of “one person, one vote,” but when Wisconsin Republicans drew an electoral map that packed many Democratic voters into fewer and more dense districts and spread the remaining Democrats thinly among districts where Republicans have a clear majority—a practice known as “packing and cracking”—these Republican map-drawers, the plaintiffs allege, intentionally diluted (“wasted”) Democratic votes statewide, thus violating the U.S. Constitution.
Drawing the Maps
Every 10 years after the country completes the national census, the state legislatures draw new district lines to insure that all districts have approximately the same number of people. Since this process is done by the legislature, the party in power has always had the ability to draw district lines, and generally parties try to draw lines in a way that favors their own candidates. However, Whitford believes that the 2011 maps went far beyond “politics as usual.”
In 2011, for the first time in 40 years, Wisconsin Republicans controlled both chambers of the legislature and the governorship at the time of redistricting. When one party controlled the legislature and the other controlled the governorship, compromise ruled the electoral mapmaking process or the courts ended up drawing the lines. But when Republicans finally controlled both chambers and the governorship, they went about drawing extreme maps to guarantee their control of the legislature for the next decade.
With the advent of smarter computers, new, highly sophisticated mapmaking software and data-driven electoral politics, the Republican legislature was able to draw new electoral maps with pinpoint precision. Republicans adjusted district lines until they found a ratio of “packing and cracking” adequate to guarantee control of the legislature—even with a minority of the statewide vote.
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The new map’s first test came in 2012. For Wisconsin’s Republicans, it was an enormous victory. Although Democrats won a couple of hundred thousand more votes than the Republicans, the Republicans won 60 out of 99 seats in the Wisconsin State Assembly. This winning streak continued in 2014. Republicans won slightly more than 50% of the vote, but increased their Assembly majority to 63 seats.
If Democrats cast more votes statewide than Republicans but still lost the majority, the plaintiffs argue, then votes for Democrats are worth less than Republican votes. Whitford sees this “efficiency gap” between votes and results as proof that the 2011 district map violates Wisconsin Democrats’ First Amendment right to free association. If the district map violates these rights, it is known as an unconstitutional partisan gerrymander.
Judging a Gerrymander
While the U.S. Supreme Court has previously addressed the question of unconstitutional partisan gerrymandering, it has never found an acceptable yardstick to determine whether such maps are unconstitutional.
Partisan gerrymanders, or districts that are drawn to favor one party over another, are not necessarily unconstitutional. It is not enough to show that a district favors one political party; a challenger must demonstrate that the way a district is drawn directly deprives him or her of a constitutional right. The “efficiency gap” measure, developed in 2014, may be the long-awaited answer.
When Prof. Whitford and other citizens filed suit in federal court, a special three-judge panel was selected to hear the case. Two of the three federal judges were appointed by Republican presidents. The panel decided in favor of the plaintiffs by a vote of two to one and ruled that Wisconsin’s electoral district map constitutes an unconstitutional partisan gerrymander. Wisconsin Republicans appealed to the U.S. Supreme Court last year. Ideologically, the court is relatively evenly split between the four liberal justices—expected to favor the “efficiency gap” technique, and four conservative justices—expected to favor the status quo. Justice Anthony Kennedy, who usually sides with the conservatives, is expected to be the swing vote.
During Tuesday’s oral arguments, Justice Kennedy asked many questions of the attorneys representing Wisconsin Republicans, and none of the Democrats’ attorney. Many see this as a sign of skepticism regarding the Republicans’ arguments in favor of the maps. At 81, Justice Kennedy is surrounded by rumors of his imminent retirement, and this case is seen as a defining part of his legacy with the Supreme Court.
Moving Forward
The Supreme Court is expected to release its decision no later than June of next year. If the Supreme Court sides with Whitford and the other plaintiffs, Wisconsin’s electoral districts will need to be redrawn. In that event, one question will be whether the new districts will be in force before the November 2018 election. A Democratic victory in the Court would apply not only to Wisconsin but other states across the country as well. Both Democrats and Republicans could then challenge electoral maps that create an unconstitutional gerrymander under Gill v. Whitford. In contrast, if the Court finds Wisconsin’s district map is not an unconstitutional gerrymander, the current districts will remain in place; Republicans will then have the opportunity to redraw the districts once again after the 2020 census.
A Democratic Party candidate’s defeat of Gov. Scott Walker in the 2018 gubernatorial election would then affect whether the legislature (if still under Republican control) will be required to negotiate with the new Democratic governor on district lines or, failing that outcome, have the courts draw the legislative lines that will be in place for the next decade. On the other hand, if Scott Walker wins in 2018, then the Republicans will again draw uber-gerrymandered districts and cement their total political dominance in Wisconsin for another 10 years.
Elizabeth D. Shimek is an attorney at Maistelman & Associates, LLC.
