Dec. 7, 2016 – Now that a panel of federal judges has ruled that Wisconsin Republican lawmakers enacted an unconstitutional redistricting plan, the case will likely head to the U.S. Supreme Court, which could be in line to issue a landmark and far-reaching decision on the issue of partisan gerrymandering.
Gerrymandering involves the manipulation of the electoral districts in which voters reside. Political or partisan gerrymandering involves the intentional manipulation of electoral maps to disadvantage supporters in a particular party, here Democrats.
In states like Wisconsin, which give the legislature authority to draw electoral maps every 10 years, litigation is common, especially when a single party controls.
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.
But a single party has not controlled the redistricting process in Wisconsin since the 1950 redistricting cycle. Prior litigation usually surfaced to resolve a legislative impasse. Republicans, after taking control in 2010, had a rare opportunity to control redistricting. They passed a plan under 2011 Wisconsin Act 43, ahead of the 2012 election cycle.
In a 159-page split decision (2-1), in Whitford v. Gill, a three-judge panel recently ruled that Act 43 “systematically dilute[d] the voting strength of Democratic voters” and intentionally burdened their representational rights in violation of the U.S. Constitution.
Importantly, the panel's majority applied a new test that could be used in all political gerrymandering cases to determine whether a map is unconstitutional. Whether the U.S. Supreme Court will adopt the test as a constitutional standard is another question.
Heather Gerken, a law professor at Yale Law School and an expert on election law, said procedural rules unique to voting cases like redistricting will require the U.S. Supreme Court to hear the case if petitioned and the Court must affirm or deny the lower court decision. That is, the U.S. Supreme Court cannot boot the case by denying certiorari.
“The decision is likely to come down in the spring and, absent another miraculous win for plaintiffs in some other case, will likely be the Court’s last word on the subject before 2020,” Gerken wrote for Vox. In 2020, the decennial census will trigger a new cycle of redistricting nationwide. “This is also probably Justice Kennedy’s last chance to serve as the crucial fifth vote in holding partisan gerrymanders unconstitutional.”
In a column for Bloomberg, Noah Feldman, former clerk to retired Justice David Souter and a constitutional law professor at Harvard Law School, said this Wisconsin case “may become the most important judicial decision of our political era.” Like Gerken, Feldman said the case may come down to Justice Kennedy, regardless of who President-elect Donald J. Trump appoints to fill the Court’s vacant ninth seat.
Appeal Would Go Directly to the U.S. Supreme Court
The majority ruled that Act 43 violated the First and Fourteenth Amendments to the U.S. Constitution “because it discriminates against Democratic voters by diminishing the strength of their votes in comparison to their Republican counterparts.” Republicans intended to discriminate against Democratic voters, the majority ruled, and Act 43 had that discriminatory effect, as evidenced by disparate election results in 2012 and 2014.
The panel deferred a ruling on the proper remedy, which could include redrawing the maps for future elections. But Wisconsin Attorney General Brad Schimel, defending Act 43, has indicated that the Wisconsin Department of Justice “plans to appeal.” Any appeal would go directly to the U.S. Supreme Court, under a specific federal law.
The U.S. District Court for the Western District of Wisconsin, where the complaint was filed, issued the ruling. But the special panel was selected in compliance with 28 U.S.C. section 2284, which says a federal circuit’s chief judge must designate three judges to hear redistricting cases, including one federal circuit judge. Under 28 U.S.C. section 1253, such cases are appealable directly to the U.S. Supreme Court.
In this case, federal Seventh Circuit Chief Judge Diane Wood designated Judge Kenneth Ripple (of the U.S. Court of Appeals for the Seventh Circuit), Judge Barbara Crabb (of the U.S. District Court for the Western District of Wisconsin), and Judge William Griesbach (of the U.S. District Court for the Eastern District of Wisconsin) to hear the Wisconsin redistricting case. Ripple, appointed to the bench by President Ronald Reagan in 1985, wrote the majority opinion. Crabb joined. Griesbach dissented.
A Manageable Standard?
Although the majority agreed that Republicans crossed the constitutional line, Judge Ripple noted that the constitutional line on political gerrymandering is elusive, as the U.S. Supreme Court has never adopted a manageable constitutional standard.
“In resolving the plaintiff’s claim, we face a significant analytical problem,” Judge Ripple wrote. “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. Indeed, a signature feature of these cases is that no single opinion has garnered a majority of the Court.”
In prior cases, the U.S. Supreme Court has left the door open for partisan gerrymandering claims but with no clear guideposts. Without a clear test, political parties with redistricting power have likely sought to push the envelope.
However, the Democrat-plaintiffs in Whitford offered a “judicially manageable and discernable test” for political gerrymandering, one the panel’s majority applied as corroborating evidence of Act 43’s discriminatory effect on Democratic voters.
A plaintiff would have to 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 parties’ “wasted votes” – the difference between votes needed to win by the winning party and votes cast by the losing party. That number is divided by the total number of votes cast, to arrive at the “efficiency gap,” as a percentage. The efficiency gap widens when a winning party wastes fewer votes.
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.”
Trial Reveals Drafting Process
The Democrat-plaintiffs in Whitford argued that Republican lawmakers intentionally used the redistricting process to disenfranchise Democratic voters for years to come, through gerrymandering techniques called “cracking” and “packing,” dispersing opposition voters among electoral districts to weaken their collective votes, or “packing” them into single districts they were likely to win anyway, effectively wasting extra votes.
In a four-day trial, the three-judge panel heard testimony about the drafting of Act 43. The drafting process lasted several months, according to the panel’s opinion — which goes into great detail about the drafting process and the various participants — and involved advanced mapping technology tools and regression models that tested for “partisan performance.” Ultimately, draft maps with partisan scores were presented to the Republican leadership, Judge Ripple noted in the opinion. The Senate and Assembly passed the final redistricting plan in 2011 within 10 days of introduction.
A group of Democrats and a Latino rights group immediately challenged Act 43 before it could be put into action. A special three-judge panel chided the “sharply partisan methodology” used in the redistricting process but upheld the Senate and Assembly maps, aside from two Milwaukee districts that diluted the voting power of Latino voters in violation of the federal Voting Rights Act, which preserves the voting power of minority groups. The panel ordered Republicans to redraw those districts.
Judge Ripple, in this case, suggested that the plaintiffs had something prior Act 43 challengers did not: election results. In 2012, Judge Ripple explained, the Republican Party won 60 of 99 seats (60%) in the Assembly with just 48.6 percent of the statewide two-party vote. In 2014, Republicans took 63 seats (64%) with 52 percent of the vote.
Discriminatory Intent and Effect
The panel’s majority noted that the U.S. Supreme Court has not blazed a well-trodden path in cases alleging unconstitutional gerrymandering against a political party. “As our description of the case law reveals, the law governing political gerrymandering, still in its incipient stages, is in a state of considerable flux,” Judge Ripple wrote.
But Judge Ripple noted that the record in this case, unlike previous political gerrymandering cases, “is not plagued by the infirmities that have precluded the [Supreme] Court … from concluding that a discriminatory effect has been established.”
Based on evidence of the drafting process, the majority ruled that Republicans intended to entrench the Republican Party in power for the remainder of the decade, and that discriminatory intent had the intended effect in subsequent elections.
“It is clear that the drafters got what they intended to get,” Judge Ripple wrote. “[E]ven when Republicans are an electoral minority, their legislative power remains secure.”
The majority accepted the “efficiency gap” as corroborative evidence of an “aggressive partisan gerrymander that was both intended and likely to persist for the life of the plan,” noting an efficiency gap of 13 percent in the 2012 election, 10 percent in 2014.
Finally, the majority ruled that Act 43 had no justification. The defendants had argued that Wisconsin’s political geography naturally favors Republicans because most Democrats are concentrated in urban centers like Milwaukee and Madison.
“[A]lthough Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizeable disparate effect seen in 2012 and 2014 under Act 43,” Judge Ripple wrote.
Judge William Griesbach, of the U.S. District Court for the Eastern District of Wisconsin, concluded that Act 43 was politically motivated but otherwise “complied with redistricting principles” and did not rise to the level of unconstitutional political gerrymandering.
“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,” he wrote.
He said the “efficiency gap,” offered as a judicially discernable and manageable standard for use in political gerrymandering cases, “appears to have substantial theoretical and practical limitations that render it unsuitable for the task at hand.”
Judge Griesbach also noted that Republicans would have won control of the legislature in 2012 and 2014 even without Act 43 because of their natural geographic advantage.
“Here, it is difficult to perceive an extreme abuse when the gerrymandering party would have won control of the legislature even without gerrymandering,” he wrote.
The case seems destined for a date with the U.S. Supreme Court. Attorney General Schimel has indicated that he will appeal. The case is still in the hands of the three-judge panel, which will next consider the remedy for drawing an unconstitutional map. But there seems to be a lot of agreement on who will ultimately decide this case.
“[The case’s] fate may rest with a single justice, Anthony M. Kennedy, who has expressed a willingness to strike down partisan gerrymanders but has yet to accept a rationale for it,” wrote Michael Wines at the New York Times.