The Future of Gerrymandering Teach-Out
What Progress has been made? / Lesson 1 of 7
Update on the Gill v. Whitford case
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Gill v. Whitford, 585 U.S. ___ (2018)
1. Background: What led plaintiffs to challenge Wisconsin’s maps?
In Wisconsin, like in most states, the power to draw legislative and congressional district lines after each decennial census is vested with the state legislature, and the Governor has veto power.
Wisconsin is a “purple” battleground state: control of one of the two state legislative houses changed hands in 4 out of the 5 elections that took place between 2002 and 2010.
In 2004, the U.S. Supreme Court decided Vieth v. Jubelirer, 541 U.S. 267 (2004), holding that partisan gerrymandering was nonjusticiable (not capable of being addressed by the Court) because there was no manageable standard the Court could apply. Unfortunately, Vieth is now widely seen as giving the “green light” to state legislatures to engage in extreme partisan gerrymandering.
In 2011--the redistricting cycle immediately following Vieth--the Republican-controlled legislature in Wisconsin gerrymandered the state’s district maps. In the next election, in 2012, a majority of Wisconsin voters favored Democrats in state legislative races, but Republicans captured 60 of the 99 Assembly seats (60.6%); in 2014, Republicans won 63 seats (63.6%) with only 52 percent of the statewide vote. In 2016, Democrats and Republicans were virtually tied, yet Republicans increased their majority in the Assembly to 64 seats (64.6%).
2. What were the issues before the Court in Gill v. Whitford?
In 2015, 12 Wisconsin Democrats filed suit in federal court, alleging that the state’s 2011 Assembly district maps were partisan gerrymanders that violated the Equal Protection Clause in the Fourteenth Amendment and their First Amendment rights of free association guaranteed by the U.S. Constitution. In essence, they argued that the state was discriminating against them (diluting their vote) because of their political affiliations and viewpoints.
The case went to trial and in 2016, a three-judge panel of the U.S. District Court for the Western District of Wisconsin voted 2-1 in favor of the plaintiffs. To evaluate the maps, the Court applied a 3-pronged test, asking if the redistricting "(1) [was] intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” (Slip Op. at 56, available at: https://www.brennancenter.org/sites/default/files/legal-work/Whitford-Opinion112116.pdf)
The Court found that the Republicans indeed had adopted maps “intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that [the gerrymander] had its intended effect. Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, [the maps] constitute[ ] an unconstitutional political gerrymander.” (Slip Op. at 2)
To evaluate the maps’ effect on voters (the second prong), the Court applied the “efficiency gap,” a mathematical test for measuring partisan advantage that was developed by Prof. Nicholas Stephanopoulos and Eric McGhee of the University of Chicago Law School in the intervening years since Vieth. (See Nicholas Stephanopoulos and Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chicago L. Rev 831 (2015), available at: http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/04%20Stephanopoulos_McGhee_ART.pdf.)
The Court issued an order prohibiting the 2011 Assembly maps from being used in future elections, but declined to draw new maps itself, instead sending the matter back to the Wisconsin state legislature.
The State of Wisconsin appealed to the U.S. Supreme Court, which heard the case on October 3, 2017.
3. What did (and what didn’t) the Supreme Court decide?
The Supreme Court sent the case back to the trial court on technical grounds; it did not decide the case on the merits. It did not endorse any standard for measuring partisan gerrymandering or specify at what point partisan gerrymandering is so extreme that it violates voters’ constitutional rights.
On June 18, 2018, the Supreme Court vacated the Order of the District Court, finding unanimously that the plaintiffs had not demonstrated “standing” to challenge the constitutionality of the 2011 maps. (All plaintiffs need to demonstrate “standing” -- i.e., that they are the proper parties to bring the claims at issue -- to bring a lawsuit in federal court. The requirement arises from Art. III of the U.S. Constitution, which restricts the Courts to live “cases and controversies.” This means that plaintiffs must demonstrate that they have suffered an injury-in-fact -- an actual injury particular to them, not suffered by the general public -- that was caused by defendants, and that can be remedied by the Court.)
The problem, the Justices stated, was that the plaintiffs (the 12 Wisconsin Democratic voters) had focused on proving the entire state map was gerrymandered against Democrats, but to establish standing they had to instead prove that their particular districts were gerrymandered.
Thus, the Court did not, as many Democrats had hoped, conclude based on efficiency gap calculations that Wisconsin’s 2011 legislative maps were an unconstitutional gerrymander.
Instead of throwing the case out, however (which is customary when a Court finds lack of standing), the Court remanded the case back to the District Court so that the plaintiffs could offer proof to establish standing.
4. What happens now?
The case goes back to trial before the federal District Court, which ruled in Plaintiff’s favor in 2016. Plaintiffs will have another opportunity to prove that their particular districts were gerrymandered in violation of the U.S. Constitution, as demonstrated by efficiency gap (or other) measurements.
5. Where can I find more information?
The Brennan Center has uploaded all of the Court documents and has a great overview of the Wisconsin District and Supreme Court decisions in Gill here.
The Brennan Center also offers great coverage,here, of Benisek v. Lamone, 585 U.S. ___ (2018), where Republican voters in Maryland challenged on First Amendment grounds the Democrats’ gerrymander of that state’s Congressional district maps in 2011. There, Plaintiffs sought an injunction to prevent the challenged 2011 maps from being used in the 2018 elections while their case was pending, but the Appeals Court denied the request and Plaintiffs appealed. Like in Gill, the Supreme Court ruled on technical grounds--it held that the lower court did not err when it denied the injunction, and sent the case back to the lower courts without diving into the merits of plaintiffs’ constitutional claims.
6. And now ...?
Stay tuned. Both cases will proceed, and may come up again before the U.S. Supreme Court as early as next term.