Letting the democratic process work

OCTOBER 2017 TERM

The U.S. Supreme Court has the opportunity to dramatically improve the democratic process in the United States by putting an end to partisan gerrymandering. Gill v. Whitford was argued earlier this month, and no case this term is likely to be more important. As with so much else in the Supreme Court, the outcome of the case seems very much to depend on Anthony Kennedy and it is impossible to accurately predict what he will do.

Partisan gerrymandering -- where the political party controlling the legislature draws election districts to maximize seats for that party -- is nothing new. In fact, the practice is named for Massachusetts Governor Elbridge Gerry who in 1812 signed a bill that redrew the state senate election districts to benefit his Democratic-Republican party. But what has changed are the sophisticated computer programs that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts to gain a much more disproportionate number of safe seats for itself.

This is exactly what occurred in Wisconsin, where Republicans took advantage of their control of the Legislature to give themselves a much greater number of seats relative to their voting strength. The Republicans employed two gerrymandering techniques in order to lessen the effect of votes for Democrats statewide: "cracking" -- "dividing a party's supporters among multiple districts so that they fall short of a majority in each one" -- and "packing" -- "concentrating one party's backers in a few districts that they win by overwhelming margins."

The gerrymandering worked. As the federal court explained: "In 2012, the Democrats received 51.4% of the statewide vote, but that percentage translated into only 39 Assembly seats. A roughly equivalent vote share for Republicans (52% in 2014), however, translated into 63 seats -- a 24 seat disparity." Put another way, "[i]n 2012, the Republicans won 61% of Assembly seats with only 48.6% of the statewide vote. ... In 2014, the Republicans garnered 52% of the statewide vote but secured 64% of Assembly seats. ... Thus, the Republican Party in 2012 won about 13 Assembly seats in excess of what a party would be expected to win with 49% of the statewide vote, and in 2014 it won about 10 more Assembly seats than would be expected with 52% of the vote."

Similarly, in North Carolina, essentially a purple state, Republicans were able to convert a slim majority in the votes cast for the state legislature into a super-majority of the seats in both of the houses. The same is true in many other states.

Partisan gerrymandering is inconsistent with basic principles of democratic government, as well as constitutional guarantees of equality in voting. Democracy involves voters choosing their elected officials, but partisan gerrymandering has elected officials choosing their voters.

Justice Ruth Bader Ginsburg, writing for the court in Arizona State Legislature v. Arizona Redistricting Commission (2015), explained that independent redistricting commissions are desirable because they "impede legislators from choosing their voters instead of facilitating the voters' choice of their representatives."

California and Arizona are among a minority of states which have independent commissions to draw election districts. In a majority of the states, the political party that controls the state legislature draws districts for both the U.S. House of Representatives and for the state legislature. They inevitably do so in a way to maximize their political control.

In Davis v. Bandemer (1986), the Supreme Court held that challenges to gerrymandering are justiciable and that substantial vote dilution through gerrymandering denies equal protection. The court said that gerrymandering is unconstitutional if it involves "intentional discrimination against an identifiable political group and an actual discriminatory effect on that group."

But in Vieth v. Jubelirer (2004), the Supreme Court dismissed a challenge to partisan gerrymandering, and a plurality of four justices said that such suits are inherently nonjusticiable political questions. Republicans controlled the Pennsylvania Legislature and they drew election districts to maximize Republican seats. In Vieth, the plurality concluded that Davis had proven impossible to implement and the plurality opinion, written by Justice Antonin Scalia, concluded that challenges to partisan gerrymandering are nonjusticiable political questions. Justice Scalia, joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, said that there are no judicially discoverable or manageable standards and no basis for courts ever to decide that partisan gerrymandering offends the Constitution.

Justice Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the lack of judicially discoverable or manageable standards, but he said that he believed that such standards might be developed in the future. Thus, he disagreed with the majority opinion that challenges to partisan gerrymandering are always political questions; he said that when standards are developed, such cases can be heard. Justices Stevens, Souter, and Breyer wrote dissenting opinions, which Justice Ginsburg joined, arguing that there are standards that courts can implement.

The Supreme Court offered no more clarity in a subsequent decision, League of United Latin American Citizens v. Perry (2006), where it again dismissed a challenge to partisan gerrymandering. After Republicans gained control of the Texas Legislature in 2002, they redrew districts for Congress so as to maximize likely seats for Republicans. The redistricting was very successful. The Texas congressional delegation went from 17 Democrats and 15 Republicans after the 2002 election to 11 Democrats and 21 Republicans in the 2004 election. Many lawsuits were brought, and again the Supreme Court, in a 5-4 decision with no majority opinion, dismissed the case.

It is in this context that the challenge to Wisconsin's gerrymandering is enormously important. This is the first court to find gerrymandering to be unconstitutional since these Supreme Court decisions. The three judge federal court, in a lengthy opinion by Judge Kenneth Ripple of the 7th U.S. Circuit Court of Appeals, said that it now is possible to measure the effects of partisan gerrymandering by quantifying an "efficiency gap." The court explained that "[t]he efficiency gap is the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast."

The court applied this through a three-part test: First, plaintiffs have to establish that a state had an intent to gerrymander for partisan advantage. Second, the plaintiffs need to prove a partisan effect, by proving that the efficiency gap for a plan exceeds a certain numerical threshold. Third, and finally, if the plaintiffs meet these requirements, then the burden is on the defendants to rebut the presumption by showing that the plan "is the necessary result of a legitimate state policy, or inevitable given the state's underlying political geography." If the state is unable to rebut the presumption, then the plan is unconstitutional.

The three-judge court used this test and concluded in a 2-1 decision that the election districts for the Wisconsin Legislature were drawn with the purpose and effect of enhancing Republican seats and decreasing those for Democrats. The court found no legitimate purpose for this disparity and found the partisan gerrymandering to be unconstitutional.

The oral argument before the Supreme Court left the sense that the justices are deeply divided along ideological lines. Justice Kennedy's questions gave no sense of how he will vote. Nor do prior cases. In 2015, Justice Kennedy joined Justice Ginsburg's opinion in Arizona Redistricting Commission that strongly condemned partisan gerrymandering. But in 2017, he joined Justice Samuel Alito's dissenting opinion in Cooper v. Harris which defended the practice.

Partisan gerrymandering is undesirable whether done by Democrats or Republicans. The Supreme Court should hold that challenges to it can be heard in the federal courts and explain that districting is unconstitutional when it disproportionately favors a political party with no other explanation besides partisanship. This is a chance for the court to take a huge step to having our democratic process work.