Can individual voters challenge a state-wide redistricting plan as unconstitutional? Is a re-districting plan constitutional so long as it complies with traditional districting criteria? Was the issue of entrenchment properly litigated?
In what Justice Ruth Bader Ginsburg called the most important case presently before the Supreme Court, the Court will venture into the thicket of redistricting. Wisconsin Republicans redrew Wisconsin’s State Assembly district maps in 2011, allowing them to win the majority of Assembly seats with only 48.6% of state votes and prompting Wisconsin Democrats to sue. A U.S. District Court held for the Wisconsin Democrats, finding the re-districting plan unconstitutional because it was gerrymandered with the intent of disenfranchising Democrats, had such an effect, and lacked a legitimate justification for its effects. Four issues will decide the outcome of this case: are the Democrats entitled to have their claim heard in court; is the test that the district court adopted judicially “discernable” and “manageable” enough for courts to apply; does compliance with traditional districting criteria render a redistricting plan non-discriminatory notwithstanding the district court’s test; and did the parties fully litigate the issue of entrenchment? Will the Court intervene in partisan gerrymandering and expand federal power or will it abstain from this politically charged question to protect federalism?
Questions as Framed for the Court by the Parties
- Whether the district court correctly held that Appellees have standing to challenge in its entirety the district plan for Wisconsin’s State Assembly as an unconstitutional partisan gerrymander?
- Whether the district court correctly held that partisan gerrymandering claims are justiciable pursuant to the test the court adopted—requiring discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification?
- Whether the district court correctly held that compliance with traditional districting criteria is not a safe harbor that precludes any possibility of liability for partisan gerrymandering?
- Whether Appellants are entitled to a remand on the issue of entrenchment even though Appellees and the district court emphasized the durability of a party’s advantage throughout the litigation?
Wisconsin has long faced difficulty drawing its electoral districts—a process commonly known as redistricting. In the 1980s, after a Republican governor repeatedly vetoed any redistricting plans proposed by the Democratic Assembly, a federal court had to determine the districts. Under the court’s plan, Democrats won control of the legislative and executive branches and enacted their preferred district map in 1983. The 1983 map remained in effect until 1992, when the federal court again had to draw the district map. The court’s 1992 plan was held unconstitutional in 2002 because it violated the “one person, one vote” principle of the Equal Protection Clause. As Wisconsin’s legislature was again divided over a new plan, the federal court again redrew the districts. The court’s 2002 plan remained in effect until 2010.
In 2010, voters elected a Republican majority into the legislature and a Republican governor, allowing the Republican leadership to draw its own district map. With the help of consultants and professors, Republicans drew regional district maps, aiming to comply with both the Voting Rights Act and traditional districting criteria such as contiguity (portions of a district must be as physically adjacent as possible), compactness (districts must be as compact as possible), and population equality (districts must maintain as equal populations as possible). Additionally, Republicans used a “composite partisan score”: a quantitative measure that allowed them to evaluate the partisan impact of proposed plans.
In June 2011, after drafting several maps, Republicans combined the various regional maps into a single statewide map. The final map gave Assembly Republicans more favorable electoral odds compared to court’s 2002 map: Republicans could maintain a 54-seat majority in the Assembly while receiving only 48% of the statewide vote. Democrats, on the other hand, could only secure a majority if they received 54% of the statewide vote. Assembly Republicans were briefed on the map with a memorandum that discussed voting trends but omitted contiguity, compactness, and population equality. Thereafter, they enacted the map as Wisconsin Act 43.
Act 43 was challenged in court even before the Governor of Wisconsin signed it into law. Although those cases resulted in certain districts being redrawn, the largely unaltered Act 43 governed the 2012 and 2014 elections. In 2012, Republicans received 48.6% of the statewide vote for Assembly candidates but won 60 of 99 Assembly seats; in 2014, they received 52% of the statewide vote and won 63 Assembly seats.
William Whitford and other Wisconsin residents sued Beverly R. Gill and other members of the Wisconsin Elections Commission, alleging that Act 43 is a partisan gerrymander that violates the First and Fourteenth Amendments. Gill unsuccessfully petitioned the district court to throw out the case, and the case proceeded to trial. After trial, a three-judge panel held that Act 43 was an unconstitutional gerrymander because it discriminated against Democratic voters. The district court ordered Republicans to draft a new district map, but Gill appealed to the Supreme Court per 28 U.S.C. § 1253 and requested that the Supreme Court stay the decision pending the appeal to the Supreme Court. On June 19, 2017, the Supreme Court, in a five-to-four decision, granted a stay and postponed considering jurisdictional questions until oral argument.
DO VOTERS HAVE STANDING TO CHALLENGE STATEWIDE REDISTRICTING PLANS?
Gill asserts that the case should have been dismissed because Whitford lacks standing to sue. Gill argues that Whitford lacks standing because statewide redistricting does not affect voters in a “personal and individual way,” and thus Whitford has standing only for a claim specific to his own district. Gill contends that just as the Supreme Court limited standing for racial gerrymandering claims to individual districts because only intra-district harms are sufficiently individualized, so the Court should limit standing for partisan gerrymandering claims. Finally, Gill argues that Whitford’s purported injury, the inability to engage in successful campaign activity to achieve a Democratic majority in Wisconsin, is not a “concrete and particularized” injury for the purposes of standing.
Whitford counters Gill’s assertion, citing the fact that the Supreme Court has never dismissed a statewide partisan gerrymandering case for lack of standing. Whitford argues that, in fact, the Court has previously recognized that “unconstitutional vote dilution” can underlie a valid, statewide partisan gerrymandering claim. Whitford posits that partisan gerrymandering claims are necessarily statewide in nature because, as the Supreme Court has observed, voters have an interest in the collective representation of their legislature. Furthermore, Whitford argues that the instant claim is analogous to “one person, one vote” claims—commonly statewide in nature—rather than racial vote dilution claims—typically regional in nature. Whitford acknowledges that standing doctrine requires a direct link between “the nature and source of the claim asserted,” but argues that this claim satisfies that requirement because the claim states “that Act 43 intentionally, severely, durably, and unjustifiably dilutes Democratic votes throughout Wisconsin.” Finally, Whitford notes that it is impossible for his claim to be justiciable but not to have standing because of the claim’s statewide nature.
ARE STATEWIDE PARTISAN GERRYMANDERING CLAIMS JUSTICIABLE?
Gill asserts that the district court lacked jurisdiction because statewide partisan gerrymandering claims are nonjusticiable—i.e., cannot be reviewed in court. Specifically, Gill contends that neither the district court’s nor Whitford’s proposed standard for adjudicating partisan gerrymandering claims is “judicially discoverable and manageable,” and, therefore, partisan gerrymandering claims are nonjusticiable political questions.
In support of her assertion, Gill states that the Supreme Court has rejected proposed partisan gerrymandering standards over the past three decades and that numerous Supreme Court justices have labeled such claims as nonjusticiable political questions. Gill notes that the Court has already rejected standards based on proportional representation, partisan intent, non-compactness, and minority party entrenchment. Gill then argues that the only remaining foundation for a plausible standard is partisan symmetry, which Gill asserts the Court has already rejected in Vieth v. Jubelirer and League of United Latin American Citizens (LULAC) v. Perry because it is not sufficiently “comprehensive and neutral.” Moreover, Gill maintains that, even if the proposed standard is “comprehensive and neutral” enough to vault over the justiciability hurdle, the proposed standard does not clear the bar of being “limited and precise” enough to state a reviewable claim. Gill contends that Whitford’s proposed standard is inadequate because it relies on the three prongs of partisan intent, effect, and lack of a justification—two of which the Supreme Court previously rejected. Gill concedes that the proposed effect prong is sufficiently different from previous iterations to constitute a new standard, but argues that a test based on the effect-prong is nonviable. Gill dismisses a test based on partisan asymmetry and bias as “social science hodgepodge” because it is unclear what metrics a court should use to calculate these ambiguous concepts. Gill similarly dismisses “the Efficiency Gap test,” under which a party experiences unconstitutional gerrymandering if it is unable to translate votes into assembly seats, because the test “gives a hyperproportional share to the party winning the majority of the statewide vote.” According to Gill, this test would be biased towards Democrats, because their constituents are concentrated in cities, thus representing fewer state districts but a greater percentage of the overall population. Finally, Gill argues that the Supreme Court previously foreclosed a test based on entrenchment—the test upon which the district court relied—in Davis v. Bandemer.
Whitford argues that the standard the district court adopted is both “judicially discernible” and “judicially manageable,” such that Whitford’s claim is justiciable. First, Whitford contends that discernibility demands only an underlying constitutional violation and that manageability demands only the practical production of reasonable outcomes. A standard based on “discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification,” Whitford maintains, satisfies these requirements. Whitford asserts that the district court’s standard is judicially discernible because it involves a constitutional violation, its foundation of partisan symmetry is “comprehensive and neutral,” and it draws from the Supreme Court’s gerrymandering precedent. Whitford argues that, in fact, there are two constitutional injuries at issue: first, that intentional vote dilution violates the Equal Protection Clause of the Fourteenth Amendment; and second, that partisan gerrymandering implicates the First Amendment by punishing citizens for association with a particular political party. Whitford asserts that the district court’s standard is judicially manageable because the intent and justification prongs are direct analogs of previous Court-approved standards, because the novel effect prong is easily applied, reflects modern politics, is inherently neutral, and because adherence to the standard is easily accomplished.
DOES THE NON-LITIGATION OF AN ENTRENCHMENT-BASED STANDARD MERIT REMAND?
Gill contends that the district court’s entrenchment-based effect-prong standard, which led the district court to hold that Act 43 was unlawful because it ensured Wisconsin Republicans a lasting legislative majority, was insufficiently tried before the district court because Whitford conceded such a standard was foreclosed by precedent. Gill maintains that if the Supreme Court finds that entrenchment is not foreclosed, then the Court should remand the case for a full litigation on the issue.
Whitford argues that Gill is not entitled to a remand because both Whitford and the district court were clear, before trial and during, that partisan entrenchment was a distinct issue. Therefore, Whitford maintains that Gill should not be surprised by use of this argument before the Supreme Court. Whitford explains that partisan entrenchment was an issue under consideration because partisan entrenchment, as a discriminatory effect of partisan gerrymandering, could potentially take all possible remedies out of the control of the political process.
ARE REDISTRICTING PLANS THAT COMPLY WITH TRADITIONAL REDISTRICTING PRINCIPLES ALWAYS CONSTITUTIONAL?
Finally, Gill argues that Act 43 is lawful because the Wisconsin legislature “complied with traditional redistricting principles.” Gill contends that compliance with traditional redistricting principles is, in itself, a legitimate legislative objective. Thus, Gill asserts that any redistricting plan based on a legitimate legislative objective is legal. Gill concedes that racially gerrymandered districts drawn with traditional redistricting principles can be illegal, but argues that the same is not true for partisan gerrymandered districts. The key difference, Gill contends, is that race is an “impermissible classification,” whereas party affiliation is not. Finally, Gill contends that Act 43 is legal because, in addition to being drawn according to traditional principles, Act 43 “took politics into account” and resulted in a map highly comparable to the previous, court-drawn Wisconsin district map.
In contrast, Whitford asserts that compliance with traditional districting principles does not serve as a safe harbor, noting that the Supreme Court previously refused to recognize traditionally shaped districts as per se constitutional in Gaffney v. Cummings. Whitford also argues that a majority of the Court in Vieth rejected a test based on adherence to traditional districting principles. Furthermore, Whitford asserts that, in racial gerrymandering cases, the Court has treated divergence from traditional redistricting principles to be evidence of racial purpose, but not to be dispositive; thus, Whitford argues, adherence to traditional redistricting principles should not be considered dispositive evidence of a partisan gerrymandered plan’s legality. Finally, Whitford argues that adherence to traditional principles is tangential to this case because Whitford offered direct evidence of discriminatory intent and maintains that there is plentiful evidence that Gill did not adhere to traditional principles.
ANOTHER CHAPTER IN THE BATTLE FOR PARTISAN ADVANTAGE, OR A QUEST TO SAVE AMERICAN DEMOCRACY?
Numerous amici in support of Gill—namely the Wisconsin State Senate and Wisconsin State Assembly (“WSSWSA”), National Republican Congressional Committee (“NRCC”), Majority Leader and Temporary President of the New York State Senate (“N.Y. Senate Majority Leader”), and Wisconsin Manufacturers—assert that Whitford’s claim is nothing more than the Democrat’s attempt to gain political advantage. WSSWSA, for example, contends that the district court’s standard for whether a partisan gerrymander violates voters’ constitutional rights is biased in favor of Democrats because its analytical framework favors parties whose electorate is geographically centralized rather than dispersed. The NRCC agrees, adding that such dispersion patterns are common nationally, so the standard’s application would result in nation-wide bias towards Democratic candidates. Finally, Wisconsin Manufacturers and the N.Y. Senate Majority Leader argue that the social-science-based tests the district court employed are fundamentally flawed and dangerous, because they operate on the premise that voters never deviate from party loyalty and they enable a majority party to control outcomes of individual districts.
The amici supporting Whitford—Historians, Political Geography Scholars (“PGS”), Eric S. Lander, and Brennan Center for Justice—contend that the proposed standard is fundamentally neutral and necessary to prevent irreparable harm to American democracy. For example, the Historians argue that the Founding Fathers considered fair representation to be paramount, the lack of which propelled their rebellion against wildly unfair, “vicious representation” in Great Britain. PGS and Lander argue that there are many available models to measure partisan gerrymandering in a party-neutral manner. Moreover, the Brennan Center for Justice contends that the adopted standard’s “justification” prong provides an opportunity for courts to consider whether a given gerrymandering plan’s partisan imbalances are caused by neutral factors.
WILL THIS DECISION PROTECT AGAINST DISENFRANCHISEMENT OR STIFLE THE WILL OF THE ELECTORATE?
The State of Texas, in support of Gill, contends that legislatures do not act with discriminatory intent in a partisan redistricting; rather, partisan motivations are inherent in an electoral system involving competing interests. Indeed, the Republican National Committee (“RNC”), in support of Gill, argues that the lower court’s test is unreasonable because the Efficiency Gap does not account for Democrats’ tendency to live in clustered, dense areas and Republicans’ tendency to be more spread out geographically. The RNC argues that adopting the lower court’s test would result in bizarrely shaped district maps in contravention with traditional districting practices. Finally, both the RNC and the WSSWSA contend that the lower court’s test is biased in favor of Democrats because the Efficiency Gap does not properly quantify how voting affects legislative behavior and how geography affects election results.
Historians, amici in support of Whitford, contend that the Founders intended that legislatures closely correspond to their constituency to guard against the danger that a political party entrenched within the legislature posed. In fact, Senators McCain and Whitehouse, amici for Whitford, argue that partisan gerrymandering undermines public faith in democracy because an entrenched faction can legislate contrary to popular electoral sentiment. Similarly, Political Science Professors, in support of Whitford, contend that Republicans successfully employed modern districting practices and statistical techniques to durably entrench themselves into the legislature at the expense of the Democratic electorate. Finally, Election Law and Constitutional Law Scholars, in support of Whitford, assert that this entrenchment effectively blocks the Democratic electorate’s path to political power.
AN UNPRECEDENTED EXPANSION OF FEDERAL POWER, OR A NECESSARY PROTECTION OF STATE POWER?
Tennessee State Senators, in support of Gill, contend that the Framers did not intend for the federal judiciary to serve as a check upon a state’s power to draw districts. Moreover, the WSSWSA contends that expanding federal power to hear partisan gerrymandering cases will result in inevitable litigation as every redistricting attempt will be challenged in federal court. Additionally, the RNC contends that a partisan gerrymandering test as broad as that proposed by the district court would grant Congress unprecedented power to reshape state districts. The N.Y. Senate Majority Leader asserts that this expansion encroaches upon one of the most fundamental powers a State possesses.
The Municipal Lawyers Association (“MLA”), in support of Whitford, argues that partisan gerrymandering is detrimental to a state’s framework of governance by discouraging citizen involvement in local governance, deterring legislative innovation, and delegitimizing legislative decisions. According to the American Jewish Committee, on the other hand, allowing partisan gerrymandering claims would better protect a state’s democratic processes and protect the Framers’ conception of federalism. Additionally, Fairvote, in support of Whitford, argue that States will continue to both control the districting process and maintain myriad methods to prevent partisan gerrymandering without federal court intervention. Finally, Professor D. Theodore Rave, in support of Whitford, argues that federal courts will not intervene in every redistricting decision; rather, they can incentivize and grant deference to state legislatures’ nonpartisan redistricting decisions.
- Edward-Issac Dovere, Bipartisan Swath of Lawmakers Files Supreme Court Briefs Against Gerrymandering, Politico (Sept. 5, 2017).
- Adam Liptak, Justices to Hear Major Challenge to Partisan Gerrymandering, N.Y. Times (Jun. 19, 2017).