Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 

Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 

While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  

Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):

In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .

Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):

In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

Supreme Court Hears Oral Argument in 7-Year-Long Texas Redistricting Case

The Supreme Court heard oral argument today in Abbott v. Perez, two consolidated racial redistricting cases out of Texas.  This is a long-running case:

“We’re seven years into the case after three trials and two appeals to this court,” said Texas Solicitor General Scott A. Keller.

At the threshold, there is a jurisdictional question about whether the matter is proper for the Court to hear:

In the latest incarnation of the case, a three-judge panel in Texas last summer said two congressional districts and a handful of legislative districts were unconstitutional, and called on the governor to convene the legislature to draw new lines.

Before that could happen, Texas went to the Supreme Court. In September, the court on a 5-to-4 vote put that order on hold until it could hear the case. 

But not waiting for the process to play out truncated things at a critical time, the liberal justices said Tuesday.

On the merits, the Court appeared divided along liberal and conservative lines during oral argument.  The conservative justices seemed to find persuasive that the Texas legislature adopted interim maps drawn by the district court to be used in the 2012 election:

Chief Justice Roberts said Texas has a “strong argument” that the new maps were adopted in large part to bring an end to long-running litigation over whether the maps were discriminatory. 

“It does seem to me that at the very least .... that ought to give them some presumption of good faith moving forward, which is significant to the determination of their intent to discriminate,” Roberts added.

This is a somewhat more "traditional" redistricting case, in contrast to the two partisan redistricting claims that the Court has already heard this term in Gill v. Whitford and Benisek v. Lamone.  The jurisdictional question and complicated procedural history of the two Texas cases make them distinct from many redistricting cases, but they still teach the same lesson: clarity is needed in the legal rules governing redistricting to avoid states, legislators, and individuals being involved in lengthy litigation where judges attempt to apply unclear standards to complex facts with widely varying results. If courts are going to decide redistricting cases, there must be clear, easily applicable standards, not arbitrary decisions depending on which judicial panel is selected to hear a particular case.

Supreme Court Hears Oral Arguments in Benisek v. Lamone, Maryland Redistricting Case

This morning, the Supreme Court heard oral arguments in Benisek v. Lamone, a First Amendment retaliation challenge to Maryland's 6th Congressional district lines.  This is the second partisan gerrymandering case the Court has heard this term, after Gill v. Whitford in October.  

The facts and arguments in Benisek are unique from those in Whitford, though both are partisan gerrymandering claims:

For two decades, the predominantly Republican district was represented in Congress by Republican Roscoe Bartlett, but in 2011, redistricting altered the political composition of the 6th district; the following year, Democrat John Delaney beat Bartlett by over 20 percentage points. The plaintiffs in the case live in the 6th district and contend that Democrats in Maryland engaged in partisan gerrymandering – that is, drawing a redistricting map to favor one political party at the expense of another – to retaliate against them for their past support of Republican candidates like Bartlett. And that, they argue, violated their First Amendment rights of speech and association. Maryland officials deny that any gerrymandering occurred. But even if it did, they maintain, courts should stay out of these kinds of First Amendment retaliation claims because there are no manageable standards for them to use to determine when partisan gerrymandering goes too far.

The Court has refrained from ruling on partisan gerrymandering cases in the past, and it is unclear how the Justices will rule on this set of cases:

If spectators had hoped that today’s oral argument might shed some light on how the justices had voted on the Wisconsin case, they were – unless the justices have excellent poker faces – largely disappointed. Instead, it seemed entirely possible that the justices were counting on the oral argument to give them new insight into a solution to the thorny problem of partisan gerrymandering. But before they even got that far, justices of all ideological stripes expressed doubt about whether they should rule on the partisan-gerrymandering question at all when the case came to them as a request for preliminary relief, rather than for a decision on the merits, and their ruling would come too late for any changes to the state’s congressional maps before the upcoming 2018 election. . . . 

When the justices did eventually turn to the question of partisan gerrymandering itself, the concern at the heart of the Wisconsin case resurfaced: How should courts evaluate claims of partisan gerrymandering? As Justice Samuel Alito stressed to Kimberly, the Supreme Court has recognized that redistricting is an inherently partisan process, and that a desire to give the party in power an advantage is not, standing alone, problematic. 

Moreover, there was no obvious consensus among the justices on how courts should determine when politics has played too strong a role in redistricting. . . . 

As RNLA Executive Director Michael Thielen wrote last week, courts are not the proper venue for resolving the political disputes inherent in redistricting.  But since it is unlikely that courts will re-invoke the political question doctrine and no longer decide redistricting cases, everyone on all sides of this issue agrees that the Court needs to provide clear guidance to prevent courts from acting arbitrarily when deciding redistricting cases.

Democrats Are Using Courts To Take Redistricting Power Away From Legislatures

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how Democrats are trying - successfully - to seize political control by using the courts to control redistricting:

Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.

Courts are increasingly deciding redistricting cases and enacting entirely new maps by judicial fiat:

Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters. 

Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.

The recent, overt seizure of power by the Democrat-controlled Pennsylvania Supreme Court to enact a map drawn by its selected expert provides is the starkest example of the Democrats' and their liberal allies' use of the courts to achieve a result they could not obtain through the ballot box or the people's representatives:

And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.

The U.S. Supreme Court has three redistricting cases pending before it this term, which could dramatically change the law on redistricting. We hope that the Court provides some clear guidelines in this important area before the post-2020 redistricting so that the Democrats cannot use litigation to seize control of the district lines.

The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).

Redistricting Litigation Update

The past few weeks have been very busy for redistricting litigation.  Here is the status of some of the current cases:

• The Supreme Court agreed to hear consolidated Voting Rights Act and racial gerrymandering challenges to the state legislative and congressional districts in Texas (Abbott v. Perez), setting aside questions of jurisdiction until after briefing on the merits.  The court declined to hear a partisan gerrymandering claim from Texas for lack of jurisdiction (Texas Democratic Party v. Abbott).

• A three-judge district court found the re-drawn North Carolina congressional districts to be an impermissible partisan gerrymander and, in a lengthy 191-page opinion, ordered the map re-drawn, again, by January 24 (Common Cause v. Rucho).  This is the first time a court invalidated a congressional map on partisan gerrymandering grounds.  North Carolina appealed to the Supreme Court for a stay, and the original three-judge panel has refused to delay its order.

• A three-judge court in Pennsylvania dismissed a partisan gerrymandering claim against Pennsylvania’s congressional districts (Agre v. Wolf). 

• The Supreme Court of Pennsylvania heard oral arguments today in a separate challenge to the Pennsylvania map under the state Constitution.  A Commonwealth Court judge who reviewed the evidence in the case found that the congressional district lines were not unconstitutionally gerrymandered, but Pennsylvania’s Supreme Court leans heavily Democratic.

The consolidated Texas cases now join two partisan gerrymandering claims already pending before the Supreme Court this term, Gill v. Whitford out of Wisconsin (argued in October) and Benisek v. Lamone out of Maryland (oral argument date not scheduled yet).  And there are also pending redistricting cases in Georgia, Michigan, and Virginia. 

With all of this pending litigation, the rules governing redistricting are far from settled.  The maps currently being litigated are ones drawn after the 2010 census, over 7 years old at this point.  And in some cases, such as North Carolina’s congressional districts, the map currently being litigated is one that was re-drawn after the last round of post-2010 litigation. 

As we look forward to the 2020 census and the next round of redistricting, Democrats are making redistricting strategy and litigation, as well as winning majorities in state legislatures, a priority, including attracting the focus of Barack Obama and Eric Holder.  Republicans are just beginning to counter the Democrats’ efforts.  But at this rate, legislatures might not even know what the governing rules are when it is time to draw the new maps in 2021, and even if the rules are set by 2021, Democrats have shown how willing they are to change the rules after the fact through litigation. 

Stay tuned to this blog and RNLA’s Twitter feed for updates on these cases.

Supreme Court Grants Cert in Maryland Redistricting Case

To the surprise of Supreme Court observers and election lawyers, on Friday the Supreme Court agreed to hear a second political gerrymandering case this term, this time out of Maryland:

In October, the justices heard oral argument in a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011 [Gill v. Whitford]. Today they agreed to weigh in on Benisek v. Lamone, a challenge to another redistricting plan enacted in 2011, in which the plaintiffs allege that Democratic election officials in Maryland gerrymandered the state’s 6th congressional district in retaliation for the plaintiffs’ support for Republican candidates – specifically, Roscoe Bartlett, who represented them in Congress for two decades.

Most Court observers assumed that the justices would not hear Benisek, or any other political gerrymandering cases, until they had decided the currently pending case, Gill v. Whitford.  While the plaintiffs in Whitford challenged the map for the entire state, the Benisek plaintiffs are challenging just one district:

The plaintiffs told the justices that “the mapdrawers reshuffled fully half of the district’s 720,000 residents—far more than necessary to correct the mere 10,000-person imbalance in the district’s population following the 2010 census.” As a result, they explained, “registered Republicans’ share of the electorate fell from 47% to 33%,” and Bartlett lost his seat to a Democrat, John Delaney.

The claim is slightly different in Benisek as well, as it is based in the First Amendment.  A dispute over what must be proven under such a claim and whether the Court has the authority to hear the case are before the Court:

The issues before the court center on what plaintiffs in a First Amendment retaliation challenge to partisan gerrymandering must show for their case to go forward. According to the plaintiffs in this case, the district court would have required them to show that “each and every outcome is (and will continue to be) singularly attributable to gerrymandering.” But all they should have to show, the plaintiffs maintain, is that they have suffered some injury.

The decision to grant cert in this case, in addition to Whitford, may indicate that the justices will issue a broad, joint opinion laying out the rules for political gerrymandering claims.  Or, the Court may decide the cases separately and on very narrow grounds (perhaps on a jurisdictional issue, instead of reaching the claims on the merits).  While this Supreme Court term previously had the potential to change the legal landscape for redistricting, that is even more true now that another partisan gerrymandering case is before the Court.  Oral argument in Benisek has not yet been scheduled.

John Ryder on Whitford: Plaintiffs Ask Courts to Make Political Judgments

RNLA Co-Chair John Ryder wrote a post-oral argument summary of the issues in Gill v. Whitford, the Wisconsin political gerrymandering case, in the Daily Caller today.  He outlined how the Plaintiffs challenging the district boundaries in Wisconsin would like courts to make political judgments far outside a proper judicial role that would completely change how districts and representation are viewed:

Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court. 

The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution. 

As Mr. Ryder points out, Chief Justice Roberts questioned the serious danger for the proper role of the courts posed by the Plaintiffs' theories during oral argument:

[I]f the claim is allowed to proceed, there will naturally be a lot of those claims around the country. . . . We will have to decide in every case whether the Democrats win or the Republicans win. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country. . . . [T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to . . . sociological gobbledygook.

 The Chief Justice was not alone in his criticism:

Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.” . . . Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections. . . .

We hope that the Supreme Court will not take the bait and drastically expand the role of the courts into making political judgments and predictions that even professional political scientists would struggle to make.  As Mr. Ryder concluded:

In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.

A Line the High Court Shouldn’t Cross - Gill v. Whitford

Today, the Wall Street Journal published an opinion by RNLA Co-Chair John Ryder on the topic of Gill v. Whitford, the Wisconsin state redistricting case before the U.S. Supreme Court. Mr. Ryder understands this issue better than most as a former general counsel of the Republican National Committee.

In the commentary, Mr. Ryder nicely summarizes Whitford as this:

The plaintiffs will present a series of equations giving the illusion of precision and, they hope, masking their underlying political motivation. If the justices accept the plaintiffs’ argument, or any of its variations, it would put the courts deep into what Justice Felix Frankfurter called the “political thicket” of drawing political maps. More important, it would undermine a bedrock principle of American politics—that we elect representatives based on electoral districts, not proportionally as in many European countries. 

The idea that judges have any say in the mapping of political districts is relatively novel. Until Baker v. Carr in 1962, the Supreme Court had routinely held that redistricting was a “political question,” beyond judicial review. Baker presented the court with an egregious case of abuse [which compelled the Court to take action] . . . Baker held that the courts could order a redistricting to correct this imbalance. . . . Fast forward 55 years, and we have plaintiffs who argue that because redistricting hasn’t yielded the results they want, they are entitled to judicial intervention. Their theory comes down to this: A political party’s representation in a state legislature should be close to its statewide vote total in legislative elections.

Whitford could potentially upend how districts are drawn and the standards by which districts are measured:

The consequences of this proposition would be immense. First, it would require the court to settle on the correct formula. . . . It raises the possibility of endless litigation over the correct standard, with judges struggling to make sense of testimony from dueling mathematicians. In the end, it would require courts to determine the “appropriate” political balance in the state. . . . Second, such a standard would likely require bizarrely configured gerrymanders in order to achieve the judicially determined political balance. Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” . . . From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%. . . . The only way to avoid that is to draw elongated districts that splinter communities and are gerrymandered to achieve a judicially determined political result.

Mr. Ryder concludes by arguing the U.S. Supreme Court has the chance to prevent a further descent down a slippery slope, the ultimate end of which could fundamentally change the means by which our representatives are elected.

It changes the basis of representation from district-based to proportional. Instead of representing a community that is mostly compact and cohesive, the lawmaker would be selected according to a statewide partisan balance determined by the court. . . . In Gill v. Whitford, the Supreme Court has an opportunity to put an end to this nonsense by finding that the lower court ignored precedent and misapplied the law. It should do so in order to preserve our democracy.

The Supreme Court heard oral arguments this morning for Gill v. Whitford, a case likely to be one of many landmark cases for the 2017 Term. You can view the released court transcript from today's argument here. An audio recording of the proceedings is expected by the end of this week and should be posted here.

Efficiency Gap Methodology in WI Redistricting Case Deeply Flawed

NRCC General Counsel and RNLA member Chris Winkelman and Holtzman Vogel Josefiak Torchinsky PLLC attorney Phil Gordon wrote about the serious problems with the efficiency gap analysis used by the lower court in Gill v. Whitford, which the Supreme Court will hear next term (internal headings omitted):

Just when plaintiffs, distraught that their failures at the ballot box cannot be saved by wins in the courtroom, had given up hope of ever finding a standard that would meet with the approval of five justices, come the plaintiffs in this case with a “scientific” method of determining impermissible partisan gerrymandering: the so-called “efficiency gap.” . . . The efficiency gap counts any vote as wasted if that vote was for a losing candidate or was more than what the prevailing candidate needed to win a given election (i.e., 50 percent of the vote plus one in a two-party election). These supposedly wasted votes are then divided by the total number of votes in an election, and the resulting number is the misleadingly named efficiency gap. However, even a cursory inspection of this so-called methodology reveals analytical flaws and partisan skullduggery too blatant to pass constitutional muster or stand up to common sense. 

A fundamental problem with the efficiency gap is that it treats voters as monolithic blocs who vote party above all else. This assumption is contrary to reality. The efficiency gap, much like most statistical election models, attempts to predict the future. The efficiency gap is particularly bad at predicting the future because it relies on the results of a single statewide election for its calculation, aggregating a series of district-by-district elections. As recent elections have laid bare, the assertions that voters 1) will never change their mind, and 2) vote for the party only and not the candidate, are not supported by actual election outcomes. The efficiency gap does not account for vote switchers or split-ballot voting. In fact, the authors of the efficiency gap state that a gap of eight percent ought to be sufficient to render a legislative reapportionment a justiciable partisan gerrymander. . . . 

The efficiency gap is mired in a plethora of problems, both methodological and quantitative. There is not nearly enough time or space to fully document them all here. The biggest single problem with the efficiency gap is that it assumes that political populations are relatively evenly dispersed geographically. Scientific literature and common-sense experience do not support that assumption. Currently, Democrats in the United States are mostly clustered in urban areas, while Republicans tend to inhabit more suburban and rural areas. . . . This asymmetrical grouping of voters has real-world consequences on attempts to form legislative districts using traditional districting criteria (compactness, contiguity, equal population etc.). Traditional districting criteria exist, at least in part, to give courts and map makers some guidelines for evaluating maps to ensure compliance with the equal protection clause of the Constitution. Given the focus that the Supreme Court has placed on the shapes of districts, the lower court could be forgiven for rejecting the challenged maps in Wisconsin’s Act 43 if the shapes of the district boundaries were particularly egregious. They were not. The plaintiffs in this case even conceded that the challenged districts were relatively compact and contiguous and that they met the requirements of “one-person one-vote.” . . . However, the two-judge district court majority, in a novel approach, eschewed traditional districting criteria in favor of the efficiency-gap test in order to rule that Republicans had given themselves an overwhelming unconstitutional electoral advantage over the life of Act 43. 

The district court ignored the actual impact that its decision will have. Compactness, as Kennedy said in Vieth, helps Republicans because of the effect of political geography. In order to comply with this new efficiency-gap standard, the Wisconsin General Assembly would have to create maps that are less compact and contiguous. The Supreme Court has long lamented the snakes, “sacred Mayan bird[s],” “Rorschach ink-blot test[s]” and “uncouth twenty-eight-sided figure[s]” that creative cartographers have made into legislative districts. Yet, in this case, the challengers are asking the court to force state legislatures across the country to fix the Democrats’ political geography problem by ignoring years of precedent to make less compact and contiguous maps. The court should roundly reject this invitation.

The NRCC's amicus brief in Gill v. Whitford fully analyzes the practical problems with the efficiency gap analysis and outlines how the plaintiff's methodology, adopted by the district court, violates established Supreme Court case law on redistricting.  We will follow interesting developments in Gill v. Whitford as it goes to argument next term.