Supreme Court to Consider Constitutionality of Hyper-Partisan Gerrymandering

Whitford v. Gill[1]

In Whitford v. Gill the Supreme Court will decide whether extreme partisan gerrymanders are constitutionally permissible.  In 2011 Wisconsin’s Republican-controlled legislature adopted a legislative redistricting plan. A group of citizens filed suit claiming that the law distributed the Republican vote in a manner that produced a greater number of seats and divided the Democratic vote in a way that resulted in fewer Democratic seats. The plaintiffs contended that Wisconsin’s redistricting violated the Fourteenth Amendment and First Amendment because it dilutes voting power based on individuals’ political beliefs.

Individual justices on the Supreme Court have agreed that extreme partisan gerrymandering is unconstitutional, but they have been unable to develop a manageable set of standards for deciding when redistricting is too partisan. The plaintiffs in this case requested the court to use an “efficiency gap” analysis to measure the discriminatory effect of political gerrymanders. The efficiency gap counts the number of votes each party “wastes” in an election to determine whether either party enjoyed a systematic advantage. Any vote cast for a losing candidate is considered wasted, as are all the votes cast for a winning candidate in excess of the number needed to win. The efficiency gap measures how many votes were wasted when voters were “packed” into districts that overwhelmingly favored Democrats or “cracked” into districts where a Republican was already fairly certain to win.

The calculation requires totaling, for each party, the number of votes cast for the losing candidates in district races along with the number of votes cast for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate's victory. The resulting figure is the total number of "wasted" votes for each party. A fair redistricting scheme will create a relatively small number of wasted votes producing an efficiency gap approaching zero. The more partisan the gerrymander, the higher the efficiency gap. Researchers have found that an efficiency gap of 7 percent will entrench the majority until new districts are drawn.[2] The Wisconsin gerrymander created an efficiency gap of up to 13 percent.

On November 21, 2016, a three-judge panel of a federal district court held that Wisconsin’s partisan gerrymander violated the First and Fourteenth Amendments of the U.S. Constitution. The court held “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.”

The court concluded that Wisconsin’s redistricting significantly reduced the possibility that Democrats could regain control of the Assembly even with a majority of the statewide vote. The plan produced an entrenchment of the Republican Party that was likely to endure until the next decennial census. Legitimate redistricting considerations did not justify the implementation of such a plan.

Gerrymandering is about wasting your opponent’s votes by packing them into districts where they aren’t needed or dividing them out in districts where they can’t win. A number of Republican-controlled state legislatures have enacted schemes to rig the electoral process in their favor. If the trial court’s decision in this case is affirmed by the Supreme Court voters will be able to choose their own lawmakers, rather than allowing lawmakers choose their voters. This, of course, is the way democracies are supposed to work.

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[1] Leland Ware, Louis L. Redding Chair and Professor of Law, University of Delaware.

[2] For more detail see: Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 University of Chicago Law Review 831 (2015).

Court: Texas Voter ID Law is "Unexplainable on Grounds other than Race"

Veasey v. Abbott

By Leland Ware

In 2005, the U.S. Census Bureau announced that Texas had become a majority-minority state. In 2010 Texas legislators enacted a law that disenfranchised an untold number of Latinos and African American voters. A civil action was filed challenging the law under the U.S. Constitution and the Voting Rights Act. The district court ruled that the law had a disparate impact and was enacted with a discriminatory intent. Texas appealed and a panel of the Court of Appeals affirmed in part, vacated in part, and remanded the case for further findings.

After a rehearing en banc the Fifth Circuit affirmed the trial court’s decision on the discriminatory effect issue and remanded the discriminatory intent issue for reconsideration by the district court. In January of 2017, the Supreme Court denied Texas’ petition for a writ of certiorari but left open the possibility of an appeal at a later time. On April 10, 2017, the trial court affirmed its earlier ruling that the legislature acted with a discriminatory intent when it enacted a voter ID law.

Veasey v. Abbott was prompted by the passage of Senate Bill 14 (“SB 14”). The barriers to voting this law erected were enormous. Voters were required to present one of the following: a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”); a U.S. military identification card with a photograph; a U.S. citizenship certificate with a photo; a U.S. passport; a license to carry a concealed handgun issued by DPS; or an Election Identification Certificate (“EIC”) issued by DPS.

To obtain an EIC Texas residents were required to present either: one form of primary ID, two forms of secondary ID, or one form of secondary ID and two pieces of supporting identification. This meant that any application for an EIC required either a Texas driver’s license or personal identification card or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad; (3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender.

The trial court’s April 10 decision affirmed its previous finding that the legislature’s actions were “unexplainable on grounds other than race.” Proponents of SB 14 were aware of the potentially disproportionate effect of the law on minorities, but they passed the bill without adopting a number of proposed measures that might have reduced the adverse impact. Supporters of the ID law claimed it was needed remedy for voter fraud. This was a specious rationale. The evidence showed in person voting resulted in only two convictions for fraud out of 20 million votes cast in the decade leading up to SB 14’s passage.

Voter ID laws are part of a longstanding Republican effort to disenfranchise Black and Latino voters. The authors of a recent study concluded “[b]y instituting strict voter ID laws, states can alter the electorate and shift outcomes toward those on the right. Where these laws are enacted, the influence of Democrats and liberals wanes and the power of Republicans grows. Unsurprisingly, these strict ID laws are passed almost exclusively by Republican legislatures.”

Racial gerrymandering, restrictive voter ID laws and similar measures are part and parcel of Republican efforts to suppress the African American and Latino vote. This and other cases show that Supreme Court was wrong when it decided in Shelby v. Holder pre-clearance was no longer needed. Texas’ persistent and egregious conduct justifies the imposition of a requirement to pre-clear any changes in its voting procedures before they are put into effect.