John Oliver on his “Last Week Tonight”show Sunday night did a segment on Gerrymandering (video) that, while informative and funny, barely mentioned towards the end of the segment what may become a landmark case in the next term of the U.S. Supreme Court (unless affirmed) from the state of Wisconsin, Whitford v. Gill (No. 16-1161).
It’s time to get up to speed on this pending case.
Rick Hasen at Election Law Blog explains the posture of this case, The WI Gerrymandering Case and the Costs of Mandatory Jurisdiction:
The 2-1 federal court decision striking down Wisconsin’s redistricting plans for the state legislature as an unconstitutional partisan gerrymander, Whitford v. Gill, is without doubt the most significant lower federal court decision on partisan gerrymandering the lower courts have ever issued. The case will also come to the Court in the Supreme Court’s mandatory, appellate jurisdiction — which now exists only for a tiny sliver of cases, including challenges to statewide redistricting plans.
The normal route through which cases come to the Court is via petitions for certiorari. In those cases, the Court has complete discretion to decide whether to hear a particular case. But for cases in the mandatory appellate jurisdiction, the Court has only two options: summarily affirm the decision below or hear the case. One of the policy aims Congress had in mind in deploying mandatory jurisdiction for federal challenges to statewide redistricting plans was to get these cases resolved more quickly, given the time sensitivity of these kind of cases. But that policy objective conflicts with other policy concerns about the timing of Supreme Court review, and the WI case brings to the surface these conflicts.
In striking down a statewide redistricting plan as an unconstitutional partisan gerrymander, the Wisconnin decision is the first of its kind. In addition, the court relies in some part on a new statistical measure, the Efficiency Gap (EG), which is designed to help determine the extent of partisan gerrymandering in election maps. I do not want to overstate the extent to which the court relies on the Efficiency Gap; the court essentially uses the EG to corroborate the findings on partisan intent and effect it has otherwise reached. But in terms of both doctrinal development and methodology, the decision does break new ground.
If this case were coming to the Court in its certiorari jurisdiction, the Court would be able to decide whether to postpone review until other federal courts had had an opportunity to respond to the WI decision. . . the Court could bypass review in the WI case, the first of its kind, and wait for the issues to “percolate” in the lower courts. The Court would then have a richer reservoir of judicial experience on which to draw in deciding the appropriate doctrinal response.
With mandatory appellate jurisdiction, the Court loses the ability to consider any of these factors. The Court either has to summarily affirm (a high threshold to get over for lower court decisions involving novel doctrinal and methodological developments in important areas) or jump in on the merits the first time a three-judge federal court breaks new ground in a case that falls, as the WI case does, within the Court’s mandatory appellate jurisdiction.
So we now have a case of first impression relying on a new method of calculating partisan gerrymandering, something for which the Supreme Court has not adopted a standard, before the court. Your Spidey-senses should be tingling that this is yet another 5-4 Roberts Court decision to undermine democracy just waiting to happen.
James Matson recently wrote about this case in S.F. political scientist spots bias in rigged U.S. elections:
A much-anticipated U.S. Supreme Court showdown soon will decide whether America’s major political parties can continue to rig American elections without violating the Constitution.
The case of Whitford vs. Gill will test the court’s willingness to finally set constitutional limits on that long-standing, pervasive form of election rigging known as partisan gerrymandering.
Taking center stage in Whitford, and playing a pivotal role, will be the innovative idea of a San Francisco political scientist.
Partisan gerrymanders rig elections by manipulating the borders of voting districts to favor one political party over another. They deliver majorities, even supermajorities, of a party’s candidates to the legislature, in defiance of the majority of voters overall.
They create “safe seats” that insulate incumbents, making them less accountable, less willing to compromise and more likely to contribute to legislative gridlock.
They let politicians select the voters they need rather than allowing voters to elect the leaders they want.
And they are unconstitutional, at least theoretically.
The Supreme Court has said that partisan gerrymanders violate the Constitution when they’re excessive. But the court has felt ill-equipped to define when a gerrymander has crossed into “excessive” territory and over the constitutional line.
The justices have searched in vain for an effective, manageable standard on which they credibly can rely to evaluate partisan bias in voter-district plans.
In the absence of such a standard, the courts consistently have given a constitutional pass to partisan gerrymanders, even avowedly excessive ones.
That finally changed in November with Whitford, when a federal district court ruled, for the first time, that a partisan gerrymander was unconstitutionally excessive.
In doing so, the court relied on McGhee’s “efficiency gap” model to reject an extremely aggressive districting plan mapped by the Republican-controlled Wisconsin Legislature.
McGhee, a research fellow at the Public Policy Institute of California, was studying partisan bias in California’s elections when he hit upon the idea of seeing bias as a function of “wasted” votes.
Votes are “wasted” when they are cast for losing candidates, or for winning candidates beyond what was needed to win (the “over-vote”).
McGhee’s insight was to see discriminatory bias in the way a gerrymander makes the opposing party “waste” as many votes as possible.
His model offers an intuitive way to gauge the effects of gerrymandering’s time-honored map-drawing techniques, quaintly known as “packing” and “cracking.”
“Packing” involves designing voter plans that crowd opposition voters into districts that are already opposition strongholds. The opposition’s “wasted” over-vote is thus maximized when such districts are “packed” to the max.
“Cracking” involves drawing plans that break up opposition strongholds and relegate the divided remnants to surrounding districts where they are reliably outnumbered. This increases the number of districts the opposition loses, maximizing the votes the opposition party “wastes” whole districts at a time.
McGhee’s model generates the “efficiency gap” quotient or “EG” for a given voter plan.
Their data suggested setting an EG of 7 as a presumptive constitutional limit — i.e., if your gerrymander forces the other party to waste 7 percent more of the statewide vote than your party, you probably are gerrymandering excessively and ought to provide an overriding justification.
In Whitford, the legislature’s intent to favor Republican candidates was clear. The efficiency gaps for Wisconsin’s gerrymander over three successive elections were off the charts: 13 for the 2012 election (which meant 48 percent of the statewide vote was converted to 60 percent of the assembly seats), and comparable EG’s and votes-versus-seats asymmetries in the 2014 and 2016 elections, confirming that Wisconsin’s gerrymander was both discriminatory and durable; in other words, a large slow-moving target for any court intent on finding a highly biased plan.
The Whitford court invalidated Wisconsin’s plan, and ordered the Legislature to prepare a new one in time for the 2018 elections. Wisconsin has appealed to the Supreme Court.
The 2011 gerrymander in a state like Wisconsin, with its relative statewide parity in party affiliation, and highly polarized politics, may have pushed gerrymandering close to a political breaking point.
The Supreme Court is not likely to find a red flag any redder than Wisconsin’s biased plan.
And though no measure to evaluate partisan bias is going to be perfect, it is difficult to imagine a standard markedly superior to the model developed by McGhee.
So the stakes are high. A judicial solution may be all that’s available for voters in the vast majority of states without independent districting commissions (like California’s).
And a solution from the ballot box would be a hard sell in gerrymandered states where votes for change are prone to be systematically “wasted.”
A loss for the Whitford plaintiffs would likely foreclose a judicial solution to excessively partisan gerrymanders once and for all, and consign large swaths of the country to a future of unbridled redistricting warfare, where the constitutional rights of millions of American voters are accepted casualties.
A victory for the plaintiffs, and for Eric McGhee’s idea, would assure American voters contending with the antidemocratic excesses of partisan gerrymanders that the Constitution is in their corner, at long last.
Once again, the fate of our democracy is in the hands of the U.S. Supreme Court. May God save the Republic.