A Revolution Brewing: Partisan Gerrymandering May be Unconstitutional

By: Cullen Seltzer. This was posted Wednesday, February 1st, 2017

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It’s been true for a long time, since nearly the dawn of the Republic, that politicians drafting voting districts have tinkered with borders of those districts for a host of reasons. Indeed, “gerrymandering,” owes its name to Massachusetts Governor Elbridge Gerry who, in 1812, presided over a redistricting map that created a Boston district that looked like a salamander.

Over time, courts tasked with reviewing district boundaries have determined that there are good reasons (making sure districts are equal in population size, keeping jurisdictions relatively compact, keeping natural locality boundaries inside a district) and bad reasons (discriminating on the basis of race to dilute racial minority voting strength) for drawing a district boundary in a particular way. For decades, it was widely thought that while race discrimination was out of bounds, good old fashioned political partisanship was a lawful part of the ordinary sausage-making of legislative work.

In Whitford v. Gill, a Wisconsin federal court thinks that may not be the case after all. Gerrymandering for partisan political reasons may be unconstitutional.

Whitford’s Assessment of the Legal Backdrop – 5 Guiding Principles

  1. The Constitution Governs Redistricting. Legislative plans to draw voting districts are governed by the Equal Protection Clause of the U.S. Constitution. How legislative districts are crafted affects citizens’ rights to vote and the right to vote is a fundamental one. Diluting the weight of a person’s vote based on where they live is just as invidious a sort of discrimination as race or economic status discrimination.
  1. Targeting Groups for Electoral Disadvantage is Unconstitutional. Districts violate the Equal Protection Clause if they are crafted to minimize, cancel out, or dilute the voting strength of minority populations.  Assessing this purpose may include an assessment of the district’s drafters specific intentions as well as an assessment of the circumstances that result from the drawing of the district boundaries.
  1. Even Equally Sized Districts Can be Unconstitutional.  Even if legislative districts contain equal populations, they may still be invidiously discriminatory if they “minimize or cancel out the voting strength of racial or political elements of the population.”
  1. “Rough” Proportionality is Probably OK.  In the past, districts that achieved a “rough approximation of the statewide political strengths” of parties passed Constitutional muster.  A mere failure for districting to achieve results in direct proportion to partisan or racial representation is not, by itself, proof of Constitutional infirmity.

    In 1986, in Davis v. Bandemer, a plurality of the Supreme Court held political gerrymandering could amount to an Equal Protection violation.  Still, just because Democrats won 52% of votes but only 43% of seats did not prove a Constitutional violation.  In Bandemer, the evidence did not prove the districting would have a long-term negative effect on Democrats’ electoral prospects.  A single election’s disproportional results were not sufficient to prove unlawfully drawn districts.

  1. There’s Still a Narrow Path for Arguing that Partisan Gerrymandering is Unlawful.  In 2004, in Veith v. Jubelirer, a plurality of the Supreme Court grew frustrated that the standard for deciding whether political gerrymandering was too elusive.  The Veith plurality concluded that political gerrymandering cases could not be brought anymore: “[the Equal Protection Clause did not] provide a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”  Justice Kennedy, though he concurred in the judgment in Veith, made clear his own view that political gerrymandering may still run afoul of the First Amendment to the Constitution if “political classifications were used to burden a group’s representational rights …unless the State shows some compelling interest [for doing so.]”   Coupled with four votes that would have struck down the political gerrymandering in Veith, Justice Kennedy’s separate concurrence kept alive the idea that political gerrymandering may be unconstitutional, provided a standard for deciding when political tinkering went too far.

On Wisconsin!

With those legal principles in mind, the Whitford court concluded that Wisconsin’s state legislative districts violated First Amendment and the Equal Protection Clause.  Whitford first noted that the legislative districting plan in Wisconsin was adopted by legislators who went to great lengths to measure the partisan impact of their district drawing.

They explicitly considered maps that would increase partisan representation, or lead to safe seats for a party, or cause a party to lose certain seats, and adopted a plan intended to maximize a party’s partisan advantage in the legislature.  The districting plan achieved its intended results: Republicans gained seats, in successive elections, even when their vote share fell below 50% and disproportionately gained seats when their share exceeded 50%.

Mind the Efficiency Gap!

The Whitford court also used an arithmetic analysis to gauge whether political gerrymandering was unconstitutional.  It used a new metric called the “Efficiency Gap.”  The Efficiency Gap, or EG, is a tool to measure whether a party’s votes are “wasted” in an election.  In this analysis, if a party’s voters are all “packed” into a single district, any votes greater than those necessary to win that district are “wasted.”  By the same token, votes are also “wasted” if a party’s voters are “cracked” into numerous districts where they are too small an election. A “neutral” Efficiency Gap or EG would have parties “waste” votes in equal proportion.  Take this example from Nicholas Stephanopoulos:

Suppose, for example, that a state has five districts with 100 voters each, and two parties, Party A and Party B. Suppose also that Party A wins four of the seats 53 to 47, and Party B wins one of them 85 to 15. Then in each of the four seats that Party A wins, it has 2 surplus votes (53 minus the 51 needed to win), and Party B has 47 lost votes. And in the lone district that Party A loses, it has 15 lost votes, and Party B has 34 surplus votes (85 minus the 51 needed to win). In sum, Party A wastes 23 votes and Party B wastes 222 votes. Subtracting one figure from the other and dividing by the 500 votes cast produces an efficiency gap of 40 percent in Party A’s favor.

The Whitford Court looked at the EG for legislative seats in Wisconsin.  Expert testimony in the case indicated that Republican districts were drawn to be 7% – 10% more efficient than Democratic seats, meaning that Republicans “wasted” far fewer votes than Democrats.  Their votes were “packed” in districts where they would most efficiently gain a win, and “cracked” into a smaller number of districts where they would not be wasted in a losing effort.  By contrast, in some races, Democratic votes were either “packed” into districts where they enjoyed a surplus that might have been better used to make other races more competitive.

The district lines resulted in Republicans winning 61% of the district races in an election where they won only 49% of the vote and, in a later election, winning 64% of the seats when they won just 52% of the vote.

For the Whitford Court, the Efficiency Gap was a helpful objective standard, though not the sole standard, to measure the extent of partisan gerrymandering.  Expert testimony the Court seemed to find credible estimated that an efficiency gap of 7% of more was evidence of unlawful districting practice.  (Stephanopolous’s article does a great job walking through the math to calculate EG – it’s not repeated here.)  EG analysis also permitted the Court to assess whether partisan gerrymandering was likely to affect a single election or if it was likely to have an enduring effect on the ability of a party to ever overcome the gerrymandering.

Looking Ahead

The Whitford case is destined for appeal.  Two factors suggest the Supreme Court is likely to take up the case.  First, Whitford’s use of Efficiency Gap analysis purports to be an objective indicator of unlawful partisanship in gerrymandering.  If it is that, then the Supreme Court’s reticence in Veith to hear these kinds of cases may be diminished.

Second, if Efficiency Gap analysis becomes the standard measure of partisan gerrymandering, legislative districts around the country may be subject to Court review and re-drawing.  It is difficult to overstate the potential impact on local, state, and federal legislative re-districting.  Redistricting after the 2020 census is a looming deadline for Court consideration of all these issues.  So, too, are the 2018 mid-term elections, and state elections before then in Virginia and around the country.

Whitford was a 2-1 decision by a federal district court in November.  The dissent in the case disagreed with the probative effect of EG analysis, particularly as it relates to proving legislators’ discriminatory intent.  The dissent also argued that the same sort of challenges to Wisconsin’s district drawing were unsuccessful when they were made in a challenge to Indiana districting.  Finally, the dissent characterized the claims by plaintiffs as essentially a demand for proportional representation by political party and noted that that argument has already been rejected by the Supreme Court.

Suffice to say, these issues are hotly contested.  The opinion in Whitford is 159 dense pages.  We can’t be sure of the outcome of the case, but we can be sure many more pages are destined to be written in, and about, it.

In the wake of its November 2016 ruling striking down Wisconsin’s state legislative districting, the Whitford Court took up the case once more just this week. This time, the Court ruled unanimously that Wisconsin’s legislature must draw a new map, approved by its governor, by November 1, 2017.

The Court refused to stay its ruling pending any appeal.

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