The Supreme Court recently announced that it will once again risk entering the “political thicket” to consider the question of partisan gerrymandering in American politics. The case, Gill v. Whitford, comes to the Court from Wisconsin, where a panel of three federal judges, in a 2-1 decision, struck down the state’s 2010 legislative map. The court agreed with the plaintiffs – a collection of voters from across Wisconsin – that the map violated the Equal Protection Clause and the First Amendment by subjecting them to disfavored treatment based on their political views and affiliations.
The district court’s decision is the first in over thirty years to invalidate a redistricting plan for excessive partisan bias. It’s not hard to see why. In 2012 – the first election cycle after the map was implemented – Republicans earned 61 percent of the seats in the State’s Assembly while earning only 48.6 percent of the statewide vote. In 2014, 52 percent of the vote was enough to earn 64 percent of the seats. This disparity supports the majority’s opinion that the map was “designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
There are two ways legislators gerrymander politically advantageous legislative maps. The first, “packing,” packs like-minded voters into a small number of districts. This ensures that the minority party will win some political representation but not enough to win a majority. The second, “cracking,” scatters voters into several districts. Dispersing these voters ensures that they will be unable to unite to achieve electoral victories.
Gerrymandering is not limited to Wisconsin; it is pervasive and bipartisan. A Washington Post analysis awards North Carolina (in favor of Republicans) and Maryland (in favor of Democrats) the honor of the most gerrymandered states. Both parties brazenly prioritze political opportunism when given control of redistricting, but it is clear that the GOP is benefitting more from the status quo. Republicans had full control of 25 state legislatures and 29 governorships during the last redistricting in 2010. Aided by modern data analytics, GOP lawmakers drew efficient partisan congressional districts that secured the Grand Ole Party a 33 seat majority in the House while only earning 46.21 percent of the vote.
The effects of gerrymandering extend far beyond partisan jostling and political inside baseball. Congress is deeply unpopular – with approval ratings between 10-15 percent. But in 2016, only 8 of 435 incumbents lost their seats. The average electoral margin of victory was 37 percent. Only 33 seats were decided by a margin of 10 points or less and there were no competitive races in 42 states.
The proliferation of so many uncompetitive districts is eroding American political norms. Representatives’ in deeply partisan districts biggest political threat is a primary challenger from the ideological fringe. Reelection requires loyalty from the base, not appeals to bipartisanship and compromise. Unsurprisingly, Congress is now more polarized than at any time in modern history. As politicians stake out more dogmatic positions, voters are increasingly factionalized. Roughly a third of each parties voters view the opposing party as threat to the nation.
As partisanship grows, so does voter’s cynicism. Only 40 percent of voters think U.S. elections are fair. 13 percent think members of Congress get reelected because they do a good job representing their constituents. 62 percent believe that most incumbents get reelected because election rules are rigged to their benefit. But, most Americans still value compromise from elected officials. Partisan gerrymandering is deeply unpopular with the American electorate – regardless of party affiliation. Gill v. Whitford is an opportunity for the Court to reign in one of American democracies’ worst partisan excesses, and would be the rare decision made in Washington met with bipartisan approval from American voters.
The Court has engaged the issue of political gerrymandering before. The 1962 case, Baker v. Carr, considered the constitutionality of a Tennessee legislative map that granted disproportionate power to rural districts over similarly sized urban districts. Justice Brennan’s opinion was narrowly limited to Baker’s standing. But a fractured majority agreed that political gerrymandering questions should be decided under the Equal Protection Clause and are not nonjusticiable political questions.
Baker v. Carr created precedent for political gerrymandering challenges to be heard in federal courts– it did not determine a standard for which to judge the constitutionality of legislative maps. That issue was first addressed 24 years later in the 1986 case, Davis v. Bandemer. Unfortunately, Davis provided more confusion than clarity. The court could not reach a majority and the plurality opinion developed an amorphous and unworkable standard that requires courts to determine both “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”
Eighteen years later, in 2004, the Court reconsidered the issue in Vieth v. Jubelirer. Again the court was hopelessly divided. A majority of the court agreed that the legislative map at issue was constitutional – but a four justice plurality sought to overturn the precedent established by Carr and Bandemer. The late Justice Scalia, writing for the plurality, dismissed the issue as nonjusticiable. Scalia proclaimed, “eighteen years of judicial effort with virtually nothing to show for it justifies revisiting whether the standard promised by Bandemer exists.” Justice Thomas is the only remaining justice that concurred with Scalia’s opinion.
Justice Kennedy published his own opinion to affirm the constitutionality of the map at issue, but demurred from declaring the issue an improper political question. Kennedy was unwilling to declare categorically that a sufficient standard does not exist and was critical of Scalia’s absolutism, writing, “A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene.”
Kennedy concluded that the question of political gerrymandering should be answered with traditional Equal Protection analysis. But, he rejected the notion that political gerrymandering is akin to gerrymandering based on race. Race is an impermissible classification. Politics is not. Thus the operative question is not whether politics was considered during redistricting, but if it was applied in an invidious manner unrelated to any “legitimate legislative objective.”
Kennedy is also persuaded by First Amendment claims that legislative maps may unconstitutionally burden citizens based on their participation in the electoral process, voting history, association with a political party, and expression of political views. If the Court were to find that political classifications were used to burden a group’s representation rights without a compelling state interest in doing so, the map would violate the First Amendment. But again, this inquiry lacks a manageable standard to determine the adverse effect of redistricting on a party’s voters.
Nicholas Stephanopoulos believes he has found the manageable standard Justice Kennedy has been looking for. Stephanopoulos is an attorney for the Wisconsin voters challenging the map in Gill. The standard is a simple formula that divides the difference in each parties wasted votes by the total number of votes cast. Wasted votes are any vote cast for a losing candidate and any vote cast for the winner beyond the necessary number to win. The result is called the efficiency gap.
Stephanopoulos argues that gaps over 7 percent are unconstitutional. Maps above the 7 percent threshold have a less than 5 percent chance to flip to the disfavored party in a subsequent election. 15 of 38 state legislature maps analyzed in 2012 showed efficiency gaps exceeding 7 percent – 13 of the 15 favor Republicans.
Predictably, the Republican National Committee, filed an amicus brief with the Court denigrating the efficiency gap formula as “a partisan tool of the Democratic Party.” They argued that the partisan disparity between political districts is caused by geography. Democrats are often more tightly packed in urban districts, concentrating their influence. The district court acknowledged that geography contributes to the disparity, but cannot by itself account for Wisconsin’s wide chasm in vote percentage received and seats earned in the State’s Assembly.
In Vieth Justice Kennedy wrote,
“The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order. Nor should it be thought to serve our interest in demonstrating to the world how democracy works. Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, ‘we are in the business of rigging elections.’”
Unfortunate indeed. Justice Kennedy is correct that legislative restraint has been abandoned. If the Court abandons the field of partisan gerrymandering it could have a profound effect on Americans’ confidence in the democratic process. In an era of low voter turnout, even more citizens may resign themselves to the pointlessness of participating in a fixed system.
On the first day of class, my Constitutional Law professor imparted to his students the most important skill any effective appellate lawyer arguing in front of the Supreme Court must master – the ability to count to five. Gill v. Whitford is set for argument on October 3. The Court has returned to a full nine justices, but you can be sure on that day, both sides will tailor their arguments to one man.
Justice Kennedy is nearing the end of an illustrious career, often casting the decisive vote in high profile decisions. Kennedy’s eloquent Obergefell opinion has cemented his place in the Court’s history. But his Citizens United opinion remains deeply unpopular, and is wreaking havoc on American democracy. Gill v. Whitford, will likely be listed alongside these seminal cases as Kennedy’s defining moments. His decision not only has the chance to bolster his own legacy, but also to restore faith in American democracy.