Tuesday, April 25, 2017

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.

[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).

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