The Wisconsin Gerrymandering Case - and Why It Might Not Matter

You may have seen “gerrymandering” in the news a lot lately, and for good reason. Here’s a quick recap of what’s going on with the current case in the Supreme Court, why it’s important and why, regardless of the outcome, there will be a lot of work left to be done on redistricting reform.

Gerrymandering in 2 sentences: Gerrymandering refers to a practice whereby the majority party in the state legislature (which typically controls redistricting) redraws district lines to favor the ruling party in future elections using approaches such as “packing” (grouping minority party voters into districts they typically win by large margins — think 85% or 90%) and “cracking” (splitting up concentrated groups of majority party voters to spread their votes among several districts that they will win by smaller margins — 60% or 65%). These practices are so effective that a party can win a sizable majority in the state legislature with a minority of the popular vote, which is exactly what happened in this Supreme Court case.

Image courtesy of The Nation and Reuters.

What’s this case about?: The case currently in the Supreme Court, Gill v. Whitford, focuses on a district map for the Wisconsin state legislature that was gerrymandered and redrawn with such efficiency that in 2012, Republicans won a 60-to-39 seat majority in the state assembly, despite winning only 47% of the ballots cast for state assembly seats (vs. 53% won by Democratic candidates). At issue is whether such redistricting processes violate voters’ constitutional rights —including (1) the right to freedom of expression under the First Amendment, which the plaintiffs argue occurs by discriminating against individual voters on the basis of their expressed political views, and (2) the concept of “equal protection” underlying the Fourteenth Amendment.

Why does this case matter?: The Supreme Court has been split on this issue historically. The most recent landmark redistricting case, Veith v. Jubelirer in 2004, was decided 5–4, with Justice Kennedy representing the swing vote in that decision. That case essentially pushed the issue of redistricting to the legislature to address and paved the way for continued lawful partisan gerrymandering. In his decision, however, Justice Kennedy indicated that if an objective standard were developed by which one could reliably determine the extent to which partisan gerrymandering may have occurred, that could have changed his decision. Fast forward to 2017, and it appears that standard just may exist. The “efficiency gap”, a metric developed by Nicholas Stephanopoulos and Eric McGhee, uses a simple mathematical approach to determine the number of “wasted votes” by each party in an election cycle, with the gap between the two serving to effectively illustrate the degree to which gerrymandering may have occurred. This was one of several metrics used by plaintiffs in Gill v. Whitford in an effort to prove the existence of partisan gerrymandering through objective standards.

What’s the latest?: On Tuesday, October 3rd, the Supreme Court heard oral arguments on the case. All eyes are fixed on Justice Kennedy, who appears destined to be the swing vote yet again. Though we have no way of knowing for certain how he may be leaning, those favoring a vote to uphold the U.S. District Court decision striking down Wisconsin’s gerrymandered district map were encouraged to see Justice Kennedy spoke 10 times as Wisconsin’s lawyers offered their arguments to uphold the district map, but not once during the plaintiff’s arguments. Oliver Roeder and Galen Druke of FiveThirtyEight suggest this may signal Kennedy’s vote against the appeal.

Why this case might not matter: Those favoring redistrict reform are hoping for a favorable ruling in this case, which could go a long way to curbing egregious partisan gerrymandering. But it is important to note that this would be purely a reactionary solution to the matter. Establishing criteria by which severely gerrymandered redistricting may be determined and struck down still leaves plenty of room for any gerrymandering that occurs under whatever threshold the Court determines to be “excessive.” Moreover, such a solution depends upon the intervention of the executive and judicial branches after the fact — once new districts have already been put in place and have begun to achieve their desired goal.

For this reason, it is vital that states consider adopting preventative measures to inhibit partisan gerrymandering before it ever has a chance to occur in the first place. Some preventative solutions include the adoption of nonpartisan redistricting committees (e.g., the California Citizens Redistricting Commission established in 2008) and the use of algorithms to create new districts on a purely objective basis, such as minimizing the ratio of district perimeters to district areas.

Arnold Schwarzenegger on partisan gerrymandering and California’s “California Citizens Redistricting Commission.”

Voters for a Voice is on the front lines, researching and advocating for objective, nonpartisan solutions to redistricting. Stay tuned for updates on our progress in the coming days and weeks by following us out on social media (Twitter, Instagram, Facebook) and please spread the word by sharing this article!