June 21, 2017 – The U.S. Supreme Court will review a decision that struck down voter redistricting maps that Wisconsin Republican lawmakers drew and enacted in 2011, following the 2010 census. Any decision could have far-reaching implications.
On Monday, the nation’s high court announced that it will review the lower court’s decision in Gill v. Whitford, a challenge to redistricting (also known as reapportionment) on partisan gerrymandering grounds.
Gerrymandering involves the manipulation of voting districts, in this case the alleged manipulation of voting districts to the advantage of Republicans in Wisconsin.
The Wisconsin Legislature reapportioned the state legislative and congressional districts through 2011 Wisconsin Act 43 (state) and 2011 Wisconsin Act 44 (congressional) in August 2011. Redistricting maps, once established, control representation and elections for 10 years.
A special three-judge panel for the U.S. District Court for the Western District of Wisconsin ruled (2-1) last year that the Republican-controlled legislature engaged in unconstitutional partisan gerrymandering when it enacted the redistricting maps.
The panel ordered the legislature to redraw the maps by Nov. 1, 2017, to ensure they would be in place for November 2018 elections. The state, through Wisconsin Attorney General Brad Schimel, asked the Supreme Court to nix the November deadline pending the state’s appeal. Five justices agreed to let the maps stand until resolution.
The Stay: An Indication?
The case will not likely be resolved until the court’s next term, which starts in October. But at least one legal commentator suggested that the decision to keep the redistricting maps in place pending the appeal was an indication of something bigger.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
“[T]he fact that the state could muster the five votes needed for the stay bodes poorly for the [Democrat] challengers, because one factor that the justices had to consider in making their decision was whether the state is likely to succeed on the merits of its claim,” wrote Amy Howe for SCOTUS blog. “No matter how the Supreme Court ultimately rules, its decision will be significant.”
Howe noted that if the U.S. Supreme Court rules that courts cannot review partisan gerrymandering claims, the political party in power at the time of each decennial census would be emboldened to draw maps that maximize the chances of maintaining control.
“On the other hand, a ruling that courts can evaluate partisan gerrymandering claims could open the door to a flood of litigation challenging existing and future maps,” wrote Howe, noting the court could also sidestep the issue on jurisdictional grounds.
“Today’s announcement also indicated that the justices would put off a decision on whether the court has jurisdiction to review the case until they hear the merits of the case,” she wrote. “Postponing the determination of whether the court has jurisdiction could prove to be just a formality, or it could provide a way for the justices to sidestep a ruling on the merits if the case proves too hard – only time will tell.”
Noah Feldman, a constitutional law professor at Harvard Law School, has said this Wisconsin redistricting case “may become the most important judicial decision of our political era” and could be decided by the swing vote of Justice Anthony Kennedy, who was among the five justices that voted to keep the maps in place pending resolution.
Gerrymandering and the U.S. Supreme Court
The case was initiated by Wisconsin voters within the Democratic Party, including lead plaintiff William Whitford. Plaintiffs allege that Republican lawmakers engaged in unconstitutional partisan gerrymandering by intentionally altering voting districts in a way that ensured Republicans would be entrenched in power for years to come.
Defendants are members of the Wisconsin Elections Commission, which administers Wisconsin election laws, including Commission Secretary Beverly Gill.
Last year, a special 28 U.S.C. section 2284 judicial panel designated by Judge Diane Wood, chief judge of the U.S. Court of Appeals for the Seventh Circuit, ruled (2-1) that Republican-drawn maps constituted an unconstitutional partisan gerrymander, setting up a direct appeal to the U.S. Supreme Court under 28 U.S.C. section 1253.
The majority – Seventh Circuit Appeals Court Judge Kenneth Ripple (author) and Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin – decided the case despite a “significant analytical problem.”
“Although the Supreme Court’s political gerrymandering cases establish that ‘an excessive injection of politics is unlawful’ … the Court has not come to rest on a single, judicially manageable or discernable test for determining when the line between ‘acceptable’ and ‘excessive’ has been crossed,” Judge Ripple noted.
The U.S. Supreme Court has ruled that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.
“Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status,” wrote Chief Justice Earl Warren in Reynolds v. Simms, 377 U.S. 533 (1964). Only one justice dissented in that case.
One of the first partisan gerrymandering cases was Davis v. Bandemer, 478 U.S. 109 (1986), where Indiana Democrats challenged redistricting maps that Republicans drew in 1981. Importantly, a six-justice majority concluded that partisan gerrymandering claims are justiciable – that discernable and manageable standards could be applied.
But they did not reach a consensus on the standard, leaving lower courts with little guidance on resolving partisan gerrymandering cases.
Four justices ruled that the Indiana Democrats’ claims failed because, although there was sufficient evidence that Republican lawmakers intended to discriminate against Democratic voters, plaintiffs failed to prove discriminatory effect.
The plaintiff-Democratic voters had relied on the results of the 1982 elections, where Indiana Democrats earned 52 percent of the statewide vote but secured only 43 seats. Indiana Republicans earned only 48 percent of the votes but took 57 seats.
Four justices found that the Indiana Democrats’ partisan gerrymandering claim could not be supported with evidence from a single election.
“[A] finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process,” Justice Byron White wrote.
Two justices concluded that Republicans violated the Equal Protection Clause with its 1981 redistricting plan, identifying a number of factors courts should use to review partisan gerrymandering claims. But other justices disagreed with that approach.
Justice Sandra Day O’Conner led the dissent’s charge that partisan gerrymandering claims of major political parties, unlike racial gerrymandering claims, are nonjusticiable political questions because “judicially manageable standards” cannot be applied.
Decision Might Come Down to Justice Kennedy
The U.S. Supreme Court revisited Bandemer in Vieth v. Jubelirer, 541 U.S. 267 (2004), where Democratic voters in Pennsylvania challenged Republican-drawn districts.
Again, the issue of justiciability arose. Four justices concluded that political gerrymandering cases are nonjusticiable because “no judicially discernable and manageable standards for adjudicating such claims have emerged” since Bandemer.
The votes of five justices kept the gates open on partisan gerrymandering claims. Justice Kennedy, largely viewed as the swing vote in Gill v. Whitford, noted that “great caution is necessary when approaching this subject,” which involves court intervention into the American political process, but said “I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Now, the defendants are asking again: Are partisan gerrymandering claims justiciable? The ultimate decision may come down to whether Justice Kennedy believes that the Republicans intended to discriminate against certain voters in drawing the maps, the maps had that discriminatory effect, and plaintiffs present a “limited and precise rationale” to correct a constitutional violation that Justice Kennedy can embrace.
Democrat-plaintiffs inWhitford offered a “judicially manageable and discernable test” for unconstitutional partisan gerrymandering, one the district court panel’s majority applied as corroborating evidence of the redistricting plan’s discriminatory effect on Democratic voters.
Under the test, challengers must prove intent to gerrymander for partisan advantage, as well as partisan effect, through a new measure called the “efficiency gap.”
The efficiency gap measures the impacts of gerrymandering tools referred to as “packing” and “cracking” – in this case, packing Democrats into limited districts or scattering them (cracking) them across districts to dilute the strength of their vote.
Professors at the University of Chicago developed the efficiency gap test, which would measure “wasted votes” – surplus votes for a winning party in packed districts and lost votes in cracked districts, where the party has no chance of winning.
The plaintiffs asserted that a redistricting map that results in an efficiency gap of seven percent or higher should be deemed unconstitutional, so long as the partisan advantage was intended, and defendants cannot show the plan “is the necessary result of a legitimate state policy, or inevitable given the state’s underlying geography.”
Howe noted that the state is “playing for all the marbles” on the justiciability issue.
But justiciability is not the only issue. Even if the Democrat plaintiffs overcome justiciability, they still must contend with the state’s argument that, under Vieth, a party cannot make a partisan gerrymandering claim on a statewide basis, but must do so county-by-county, and that no partisan gerrymandering claim can be upheld if the redistricting party follows traditional redistricting principles.
Wisconsin argues that it followed traditional principles in drawing the maps, and the maps merely reflect Wisconsin’s political geography, where many of the state’s Democrats reside in the urban centers of Milwaukee and Madison.
Howe said the court will likely hear the case in November or December, with a decision to come in 2018, less than two years from the next decennial census in 2020.
The decision will likely impact how Wisconsin and other state legislatures draw new maps in the future, and will directly impact whether current Wisconsin maps must be redrawn.
Any ordered redraw could impact the 2018 (midterm elections), 2019, and 2020 elections (presidential election year). The Wisconsin Legislature will likely enact new redistricting maps in 2021, after the 2020 census.