Today, October 3, the Supreme Court heard arguments in the case of Gill v. Whitford, in which the Wisconsin legislature was caught red-handed manipulating the state’s voting districts to ensure that Republicans retain control for a decade, even if they lose the state-wide popular vote. The process by which the legislature did this was secret – the redistricting plan was drafted in a conference room of a private law firm with the aid of sophisticated software. Democrats were totally excluded from the process. Much of the damning evidence came to light when recall elections involving several state senators briefly put the Democrats back in control. Since the law firm represented the legislature itself, not the former Republican majority, the new Democratic majority instructed the lawyers to release the records of how the gerrymandering was done. What spilled forth should make the hair stand on the back of your neck.
Lest we Democrats feel righteously indignant about this conduct by Republicans, keep in mind that there is pending litigation in Maryland alleging that the Democrat majority engaged in similar partisan gerrymandering. Concern about the ill effects of partisan gerrymandering is shared by both sides of the political spectrum. The “friend of court” briefs filed in Gill v. Whitford demonstrate a range of opinions even among Republicans. One such brief filed by the National Republican Congressional Committee urged the Supreme Court to reverse the lower court, which had found the gerrymandering unconstitutional. Another filed by Republican Statewide Officials, including luminaries such as Bill Brock, Bob Dole and Richard Lugar, urged the Supreme Court to reject blatant partisan gerrymandering by affirming the lower court.
The Supreme Court never makes wild leaps into unknown territory. We have a common law system in which the law builds incrementally upon past decisions. The litigants attempt to show that their side is most consistent with prior precedent. The Court carefully attempts to justify each new decision by some earlier decisions or application of law. Rarely are prior decisions directly overturned. Accordingly, the Supreme Court’s previous decisions on partisan gerrymandering are the starting point for understanding what will happen when the Court decides Gill v. Whitford.
There are two prior decisions of importance. The first is Davis v. Bandemer (1986), in which a redistricting plan in Indiana was challenged by Democrats who claimed that their voting power as a group had been subverted in violation of the Equal Protection Clause. The big question in the case was whether this claim was “justiciable,” meaning whether a test could be found enabling courts to distinguish unconstitutional vote dilution from the acceptable exercise of political power by the majority party.
Although the principle of “one person, one vote” was well-established by 1986 and racially motivated gerrymandering was clearly illegal, four Justices in Davis said that the claim by a state-wide voter group was not justiciable. “A group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation will not be sufficient” to violate equal protection.
A fifth Justice argued that the claim in Davis could be decided because there was no significant difference between vote dilution affecting individuals and voter groups. But he agreed that the claim should be rejected on the narrower ground that there was insufficient proof of a violation under a test that he proposed as the correct one. His test required a showing (1) of legislative intent to deprive a voter group of equal power to elect representatives, and (2) an enduring effect on that voter group extending over more than one election cycle. But, according to him, that enduring effect cannot be proved by mere disproportionality between the size of the victimized group and the number of representatives they elect.
Confused? So was every court that tried to apply this test for the next eighteen years. In fact, every lower federal court that attempted to do so threw up its hands and concluded that partisan gerrymandering claims were impossible to judge. In the second case of importance, Vieth v. Jubelirer (2004), four Justices of the Supreme Court ruled that equal protection claims on behalf of state-wide voter groups were never justiciable because no workable standard for judging them had emerged. They declined to adopt the standard in Davis, saying it “was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by [the challengers].”
But four Justices do not make up a majority of the Supreme Court, and the fifth Justice who concurred with the four nay-sayers in Veith – Justice Kennedy – is still on the Court and will be critical to the decision in the present case from Wisconsin. Kennedy left a crack in the door for finding a test by which to judge equal protection vote dilution claims on behalf of state-wide voter groups:
I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.
For Kennedy, employing political classifications in redistricting is not itself unconstitutional, but doing so in an invidious manner or in a way unrelated to any legitimate legislative objective might be. He warned that if courts refuse to entertain any claims of partisan gerrymandering, the temptation for legislators to use partisan favoritism will grow.
This was prophetic. After the 2010 census, state legislatures went on a binge of partisan gerrymandering in the drawing of state and Congressional district lines unseen in the decades before. In Gerrymandering in America (2016), Anthony McGann and his co-authors say:
partisan bias increased sharply in the 2010 [Congressional] districting round. We find the bias of the House of Representatives in 2012 was around 9%. Roughly speaking, this means that if there were a 50/50 vote split, one party would win 55% of the seats, while the other would get 45%. This compares to a 3% bias in the 2002 redistricting round. In many individual states the bias is far, far greater . . . . There are numerous states where . . . one party can win between two-thirds to three-quarters of the seats with only half the votes.
The pressure on the Supreme Court to come to grips with this profoundly undemocratic situation will be substantial. And, as I hope to explain in the next post on this topic, the challengers to the Wisconsin redistricting may very well have the evidentiary approach that can attract a solid majority of the Court.
One more thing. It may surprise West Virginia readers of this post that our state has filed a friend of the court brief in Gill v. Whitford. Decisions to file briefs are made by the Attorney General, in this case by the arch-conservative Partick Morrisey, who has announced his candidacy for the Republican nomination for Governor. In the brief, West Virginia takes the position that “there is nothing inherently suspect, invidious, or irrational about a legislature using partisan purpose when redistricting.” This presumably reflects the confidence of the West Virginia Republican Party that it is safely in the majority. But what seems appropriate in redistricting is in the eye of the beholder. And, of course, the worm can turn.