Court Strikes Down Hyper-Partisan Gerrymander

Whitford v. Gill

By Leland Ware

Partisan gerrymandering in which electoral districts are drawn to benefit one political party and disadvantage the other is a serious problem. In jurisdictions nationwide, lawmakers have drawn legislative maps that allows them to choose their voters, instead of voters being able to choose their representatives. In Whitford v. Gill, 12 Wisconsin voters, challenged the state’s redistricting map which has been described as one of the most extreme partisan gerrymanders in modern American history.

On November 21, 2016, a three judge panel struck down Wisconsin’s redistricting map. It held 2-1 that the “First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.”

Examining the first prong of the analysis, the court noted the lengths to which mapmakers went to insure that Republicans performed well in elections. The mapmakers developed a mathematical model for evaluating voter preferences. They devised spreadsheets identifying the likely winner in various proposed districts. They gave potential maps labels such as “assertive” or “aggressive,” which indicated how likely the proposed districts would elect Republicans.

Under their final analysis, mapmakers determined that “Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.” One of the mapmakers “also made a presentation to the Republican caucus. His notes for that meeting state: ‘The maps we pass will determine who’s here 10 years from now,’ and ‘[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.’”

The map worked extremely well. “It secured for Republicans a lasting Assembly majority. It did so by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.” Even if Democrats won 54 percent of the votes, they still would only win 45 seats, giving Republicans the other 54.

In 2012, when Republicans earned just 48.6 percent of the vote, but won 60 seats in the 99 seat Assembly. Two years later, when they increased their share of the vote to 52 percent, they won 63 of the 99 seats.

The fact that the map was drawn with the intent of rigging the assembly for Republicans, and that it achieved this goal coupled with the finding the mapmakers rejected other proposed maps that “would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage” persuaded the court to rule that the redistricting was unconstitutional.

In reaching this determination, the court also relied, in part, on a metric proposed by the plaintiffs known as the “efficiency gap.” The efficiency gap is a mathematical formula which measures how many votes were “wasted” because voters were either “packed” into districts that overwhelmingly favored Democrats or “cracked” into districts where a Republican was fairly certain to win.

The Supreme Court has been reluctant to intervene into the political process of districting except in cases arising under the Voting Rights Act. If this case is appealed and the Supreme Court embraces the “efficiency gap” as a test for partisan gerrymandering it will advance the goal of allowing voters to choose their lawmakers rather than permitting lawmakers to choose their voters.