Previewing Gill v. Whitford and Benisek v. Lamone

Two potential landmark decisions on partisan gerrymandering will be decided in the Supreme Court’s 2017–18 term. Will this be a true breaking point, or will the Court continue its longstanding tradition of failing to confront this fundamental problem with our democratic system?

On this quaint little blog, I have written extensively about the judicial history of partisan gerrymandering in America. Most of this work derives from my collegiate senior thesis, which explored the topic in depth due to my own personal interest. Since then, a number of new developments have taken place on the judicial front which gives a reason for hope. Gill v. Whitford calls into question a congressional map gerrymandered by a Republican-controlled legislature in Wisconsin and Benisek v. Lamone disputes a map drawn by Democrats in Maryland. For the first time in decades, we have a bipartisan dispute being considered over this controversial practice simultaneously. Both cases will be addressed by the Court in the coming year, just two years ahead of the next redistricting cycle scheduled to take place in 2020.

The Supreme Court is the ultimate answer to the issue of partisan gerrymandering. Direct and meaningful intervention by the Court is the only way to address the root of the issue. In the past, the Court established a “one man, one vote” standard that ended the practice of malapportionment. Before the ruling in Baker v. Carr, the Court delegated the entire redistricting process into the hands of state legislatures with the decision in Colegrove v. Green. In the absence of oversight, the problem grew to such dramatic proportions that the Supreme Court eventually had to intervene.

Shades of the Past

The Economist described Court-watchers as having “scratched their heads” at the news that the Supreme Court was taking up a second partisan gerrymandering case this term. However, the move makes complete sense in a historical context. This new revelation brings up shades of the 1980’s, where both parties sued over electoral maps in Indiana and California — resulting in the first and last time where the Supreme Court reached a majority opinion attempting to set standards for intervention against the practice of partisan gerrymandering. Although the justiciable standard set forth in Davis v. Bandemer (1986) ultimately proved insurmountable for plaintiffs to successfully argue against the partisan rigging of electoral districts, hope still remains that a workable standard can be established. Indeed, this pair of cases represents the strongest opportunity in decades to finally address the issue in a meaningful capacity. The last time the Supreme Court tackled partisan gerrymandering, Justice Antonin Scalia authored the “majority opinion” due to the technicality that former Chief Justice Rehnquist sided with Scalia during a 4–4–1 split. Justice Anthony Kennedy wrote the definitive concurring opinion, which partially agreed with Scalia’s reasoning to reject the arguments presented in Vieth v. Jubelirer (2004) yet still left the door open to a workable standard arising in the future.

Indeed, Scalia hailed from a philosophical lineage that believed that the best solution for partisan gerrymandering was to put the issue in the hands of the very officials that rigged the electoral maps for their own benefit. His replacement, Neil Gorsuch, has echoed such sentiments in the recent past. The election of Donald Trump and the subsequent nomination of Gorsuch may leave the court deadlocked just as it was in Vieth, with Anthony Kennedy once again playing the role of kingmaker. While much has been made by court watchers of a potential shift from Chief Justice Roberts towards the ideological left, he seems unlikely to switch sides in this case. Essentially, the composition of the court has not changed since the decision in Vieth. Four conservatives, four liberals, and a mystery box of a man in the middle of it all.

Gill v. Whitford

The Wisconsin lawsuit presents a particularly vexing dynamic; anti-gerrymandering advocates scored a victory with the District Court’s application of a “watered down” version of the Bandemer standard. Now, the Supreme Court will consider whether or not the lower court’s ruling in this case violated the standard set by Vieth v. Jubelirer (2003).

Part of what makes Wisconsin so interesting as a test case is the state’s long history of deadlocked redistricting disputes. The map enacted in 2010 was the first time the Wisconsin legislature successfully passed a redistricting plan since the year 1970. For the 1980, 1990, and 2000 censuses, lawsuits stemming from the failure to pass a redistricting plan forced the courts to intervene and draft new electoral boundaries themselves in adherence with the “one man, one vote” standard. Due to population shifts, each new map had to be replaced on a decennial basis.

While the District Court’s opinion begins by framing the dispute in context of Wisconsin’s modern political history, the true meat of the ruling is a direct appeal to Supreme Court precedent. The District Court ruling cites key passages from Bandemer and devotes significant time to discussing the precedent of that case.

“[A]n equal protection violation may be found only where the electoral
system substantially disadvantages certain voters in their opportunity to
influence the political process effectively. In this context, such a finding of
unconstitutionality must be supported by evidence of continued
frustration of the will of a majority of the voters or effective denial to a
minority of voters of a fair chance to influence the political process.”

This quote serves as the basis for what the District Court ultimately decided was substantial enough evidence to prove an equal protection violation. If the District Court’s decision is upheld, it will mark the first time in history that a map gerrymandered with partisan intent is overthrown by the Supreme Court. Even though Bandemer acknowledged that partisan gerrymandering can be unconstitutional if proven severe enough, the map disputed in that case ultimately failed to satisfy the standard set forth by the majority ruling. With the pursuit of a workable standard at the forefront of partisan gerrymandering cases, the plaintiffs argue for the application of a new standard pioneered by political scientists.

The ‘Wasted’ Vote Standard

What makes the District Court ruling in Gill v. Whitford so absolutely fascinating is its application of an “efficiency gap” model which considers the number of “wasted” votes, defined as the number of votes cast for losing candidates plus the number of votes over 50% plus one for winning candidates. The plaintiffs argue for this standard based on the academic work of Eric McGhee, which presents the efficiency gap a solution to the lack of a workable judicial standard for partisan gerrymandering cases. By dividing the number of wasted votes in both parties by the total number of votes and comparing the percentages, an efficiency gap is measured. If the Supreme Court fully adopts this standard, the implications of that action could be truly groundbreaking.

In the LULAC v. Perry case, Justice John Paul Stevens supported the concept of partisan symmetry as a standard to analyze gerrymandering cases. Our man of the hour, Justice Kennedy, did not rule out the possibility in that case even though the argument presented in LULAC ultimately fell short.

Although liberal justices have tried and failed since 1986 to reform the Bandemer standard, this new proposal represents the best hope for a breakthrough in decades. While the District Court did not explicitly adopt this standard, the ruling acknowledged it as a viable piece of evidence to prove a discriminatory claim. The ruling also considers a “swing analysis” presented by two professors which demonstrated that the map in Wisconsin requires Democrats to win at least 54% of the statewide vote to win a majority while Republicans only need to maintain a statewide vote total of 48% to maintain the majority.

Dissecting the Oral Arguments

Paul M. Smith arguing for the plaintiffs (drawn by Art Lien).

The full transcripts can be found here.

Attorney Paul Smith, who argued the Vieth case before the Supreme Court, now represents the plaintiffs in Gill v. Whitford. He summed up the Court’s decision in that previous case thusly:

In Vieth, the Court appropriately laid down a challenge and said if you want us to do this, you’ve got to give us a lot more than you’ve given us. You’ve got to give us two things, a substantive definition of fairness and a way to measure it so we can limit judicial intervention to the really serious cases, and so we won’t have the Court entering into the political fray all the time, but we’ll have standards that say you go this far, we’re going to go — we’re going to go after you, but in the meantime, anything less serious than that, we’re going to leave to the political branches.
And so the social scientists stepped up and said we have three different ways to calculate asymmetry, not just one. The median-mean measure; the partisan bias measure, where you’re equalizing to 50/50; and the efficiency gap.

Interestingly enough, Smith argued that the case presented in Vieth would not satisfy this new efficiency gap standard in an attempt to assuage Justices’ fears that implementing the standard would open a floodgate of cases throughout the nation.

Chief Justice John Roberts and Justice Alito expressed skepticism at the prospect of adopting the efficiency gap test, Roberts dismissed the scientific response deployed by the plaintiffs as “sociological gobbledygook”. Although the Chief Justice has sided with the liberal wing at times when he feels that the institutional reputation of the Supreme Court is supported by the outcome, Roberts made clear his belief that intervention in partisan gerrymandering cases would harm the institutional reputation that he so cherishes. Don’t expect Roberts to be joining in a majority opinion, and Justices Alito, Thomas, and Gorsuch all seem likely to opine in favor of the challengers.

While the liberal justices supported the efficiency gap test, questions about its application dominated the plaintiffs testimony. Justice Breyer offered a 5-part test for the Court’s consideration. The big question mark, as always, is Justice Anthony Kennedy who previously opined that a possible standard to examine partisan gerrymandering could exist.

Remarkably, Justice Kennedy did not ask a single question during the plaintiffs’ testimony. Kennedy potentially tipped his hand in at least one regard, suggesting that the claims in Gill v. Whitford might have standing under the first amendment but disagreeing with the equal protection clause argument. But that’s where things get interesting with the court agreeing to take up Benisek v. Lamone, because that’s exactly what the plaintiffs in that case are arguing: a first amendment violation.

Benisek v. Lamone

The central issue in Benisek v. Lamone revolves around Maryland’s 6th congressional district, considered one of the most gerrymandered districts in the nation. Democrats in Maryland approached their 2010 redistricting cycle with the intention of cutting the Republicans down from two congressional seats to just one. Despite establishing a clear argument of intent, the District Court avoided weighing in further due to the pending decision in Gill v. Whitford. The plaintiffs failed to secure an injunction from the District Court.

What makes this case so interesting is the ways in which it fundamentally differs from Gill v. Whitford. While Whitford relies on a 14th Amendment Equal Protection Clause argument, Benisek advocates for a 1st Amendment framework that Justice Kennedy has contemplated in the past. Whitford challenges the entirety of the Wisconsin redistricting plan, whereas Benisek only focuses on one specific district which is consistent with longstanding protocol used in racial gerrymandering cases. Although the Court’s decision in Alabama Legislative Black Caucus v. Alabama (2015) opened the door to broader claims against an entire electoral map based on racial discrimination, there is a wealth of precedent for successful racial gerrymandering cases that focus on a single district.

The First Amendment Framework

When considered together, Whitford and Benisek represent the greatest opportunity in decades to curb partisan gerrymandering on a nationwide scale. The opportunity for a breakthrough is evident, but the fate of these two cases rests in the hands of Justice Anthony Kennedy. Notably, Kennedy considered the 1st Amendment framework deployed in Benisek while writing his definitive opinion in Vieth v. Jubelirer.

The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. “Representative democracy in any populous unit of government is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones. As these precedents show, First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.

However, just because the plaintiffs in Whitford rely upon a 14th Amendment argument does not mean that they are destined for defeat. The Supreme Court could decide to apply the elements of a 1st Amendment violation to Whitford if a majority of the Court supports the argument in Benisek.

Hope for the Future

It’s an old expression that “those who fail to learn from history are doomed to repeat it.” But in this particular circumstance, it rings particularly true. With the capabilities of modern technology, districts are being drawn with extreme precision to stack the deck in favor of the majority party.

Although the growing traction behind anti-gerrymandering reforms on a state-by-state level gives reason for optimism that this issue is permeating the collective consciousness, placing all faith in the power of existing democratic institutions to solve this problem ignores the objective fact that fewer than half of the states in our union have procedures for the public to directly enact new laws without the legislature’s approval (ballot initiatives, propositions, etc.). Indeed, the only way to address the root of partisan gerrymandering is through the Supreme Court’s intervention. Whether or not the Court will finally take a meaningful stand remains to be seen.

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