The case could dramatically impact the way states draw electoral districts.
The Supreme Court has agreed to hear a case out of Wisconsin that could be a landmark in determining whether or not Republicans or Democrats have drawn their state’s electoral districts in a way that gives their candidates an unconstitutional advantage.
The case, Gill v. Whitford, comes to the court after a panel of three federal judges ruled 2-1 last year state lawmakers unconstitutionally drew the boundaries of state Assembly district lines to benefit Republicans in 2011. While the Supreme Court has written critically of partisan gerrymandering in the past, it has never struck down a gerrymander on partisan grounds and has yet to establish a standard to determine when they are permissible and when they are not. Though, the Supreme Court has struck down district maps recently of states that it said had gone too far in using race to draw district lines.
This new case could allow the justices to provide some clarity and have a dramatic impact on the way states draw new district lines following the 2020 Census.
“The court has had problems in figuring out how to deal with this, depending on how you count it, 13 years or 30 years or 60 years or forever,” said Justin Levitt, a professor at Loyola Law School who served as a deputy assistant attorney general in the Justice Department’s civil rights division during the Obama administration. “The court has never had a clear approach to partisan gerrymandering once it decided to start hearing these cases at all.”
Controlling both the governor’s mansion and the state legislature in 2011, Wisconsin Republican lawmakers used extremely precise technology to draw electoral maps in secret that benefitted their party. In 2012, Republicans got just 48.6 percent of the vote statewide, but won 60 of the state’s 99 Assembly districts.
In 2004, the Supreme Court ruled 5-4 that a partisan gerrymander in Pennsylvania was constitutional and it was not within the purview of the court to strike it down. But of the five justices in that majority, only two, Justice Clarence Thomas and Justice Anthony Kennedy, remain. Kennedy didn’t dismiss the court’s ability to strike down a partisan map and said that if some standard was defined, the court could potentially step in to strike down a partisan gerrymander.
“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,” Kennedy, who could be the swing vote in the Wisconsin case, wrote at the time.
In its 2-1 decision in November, the U.S. District Court for the Western District of Wisconsin said the Wisconsin plan was discriminatory in both intent and effect and could not be explained by the natural political spread of voters or a legitimate state interest. That finding is significant because the Supreme Court said in a 1986 case that while it was easy to show discriminatory intent in a redistricting case, there was no clear way to determine discriminatory effect, said Richard Hasen, an election law expert and professor at the University of California, Irvine.
In an attempt to show why the Wisconsin maps were unconstitutional, the plaintiffs relied on the “efficiency gap” to make their case. According to the Brennan Center for Justice, the method, which was not wholly adopted by the lower court, “counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats. Any vote cast for a losing candidate is considered wasted, as are all the votes cast for a winning candidate in excess of the number needed to win.” The difference between the wasted votes of each party is then divided by the total number of votes cast.
When the efficiency gap is over 7 percent, it makes it extremely likely the majority party will maintain its electoral majority.
Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin Madison, said the efficiency gap was a fundamental part of the case aimed at providing Kennedy with a concrete way of distinguishing when a gerrymander is constitutional and when it isn’t.
“It shows us how much imbalance there is in the wasting of votes,” Burden said. “There is a point at which the plaintiffs say the lopsidedness of those districts has gone too far and the maps ought to be struck down as being unconstitutional.”
Burden noted because the Wisconsin case only deals with state legislative districts, separate litigation would be needed to deal with the way congressional districts are drawn. To impact the next redistricting process, Burden said, such litigation would need to start moving quickly.
A ruling in favor of the plaintiffs in the case could have an immediate impact.
“That would be the law of the land and require many states to take immediate action,” Burden said.
“If the Supreme Court actually decides to rein in partisan gerrymandering, I think it would have the effect of helping Democrats in the short-term because there are more legislatures that are controlled by Republicans,” Hasen said. “In the long term it would help to assure that districting as a whole would be more likely to represent the interest of the voters and the jurisdiction as a whole.”