Gill v. Whitford: The Integrity of our Democratic Process is on the Line

Zachary Ostrow
Monday, November 6, 2017

           On October 3rd, 2017, the United States Supreme Court heard oral arguments for the case Gill v. Whitford.[1] This case arose from an appeal from a District Court ruling which found that the Republican controlled Wisconsin legislature’s congressional redistricting plan was drafted and enacted with the intent of systematically disadvantaging the voting strength of Democrats statewide and was thus an unconstitutional gerrymander.[2] What makes this interesting is that prior to this decision, the Courts have been unable to find a workable standard for evaluating when partisan gerrymandering became unconstitutional. This has left many states, including Pennsylvania, with badly gerrymandered districts which have caused unfair election results where a party still manages to achieve a majority of legislative and congressional districts despite only receiving a minority of total votes. If the Supreme Court upholds this decision, it would finally establish a nationwide precedent which would have tremendous impact on the fairness of the redistricting process. This would be a tremendous benefit to the democratic process in America by allowing voters to choose their representatives instead of the other way around. This article highlights some of the important findings in the lower court decision, Whitford v. Gill, and briefly discusses the likelihood that the Supreme Court will affirm and what consequences may result if they do not.
Whitford v. Gill – The Lower Court’s Findings
           In 2011, the Republican controlled Wisconsin legislature enacted Act 43, a congressional redistricting plan in 2011.[3] Gill (“Plaintiffs”) challenged the plan alleging that the plan constituted an unconstitutional partisan gerrymander and that the legislature drafted and enacted a redistricting plan that systematically diluted the voting strength of Democratic voters statewide.[4] The District Court held that Act 43 was an unconstitutional partisan gerrymander drafted and enacted as a means of systematically diluting the voting strength of Democratic voters statewide.[5] The Court determined that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats, and was successful in achieving its intended effect.[6] The Court found that the discriminatory effect was not explained by the political geography of Wisconsin nor was it justified by a legitimate state interest. It was held that Plaintiffs had standing to bring the case because the harm that they experienced was not one shared by the public at large but was one shared by Democratic voters in the State of Wisconsin, and the dilution of their votes was both personal and acute.[7]
         The Court recognized that typical gerrymandering techniques have come to be known as “cracking” and packing” and that this ultimately “result[s] in ‘wasted votes’: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needs to prevail (in the case of packing).”[8] A measure for assessing this discriminatory effect of political gerrymandering was proposed and given recognition by the Court. This measure known as the “the efficiency gap”, measures the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.[9] The Court explains that an Efficiency Gap (EG) should be zero where two parties waste votes at an identical rate but an EG in favor of one party means that the party wasted votes at a lower rate than the opposing party.[10] The Plaintiffs successfully argued that the Republican legislature purposely gave greater efficiency to Republican candidates and less efficiency to Democratic candidates.
         The Plaintiffs argued for a three-part test for partisan gerrymandering. First, a Plaintiff must establish that a state had intent to gerrymander for partisan advantage. Next, a Plaintiff must prove a partisan effect, by proving that the EG for a plan exceeds a certain numerical threshold (7% being the proposed standard based on historical records). If a plan exceeds that threshold it should be held presumptively unconstitutional. Finally, the burden is on the Defendant to rebut this 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 this Defendant cannot rebut the presumption, then the plan is unconstitutional.[11]
         The Defendants argued that Democratic voters tended to live in cities which created a "natural packing" effect that would distort the EG.[12]  The defense contended that "[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended."[13] The intent element proposed by the Plaintiffs was, therefore, "meaningless," and the Supreme Court's decision in Vieth v. Jubelirer already had ruled out the more demanding standard of "predominant intent."[14] The Defendants offered two additional criticisms of the Plaintiffs' test. First, they argued that “the Plaintiffs' "Demonstration Plan" was based on a counterfactual scenario and therefore failed to address concerns raised by some Justices about a standard which dealt with a "hypothetical state of affairs”."[15] Second, the defense argued that the EG is “highly sensitive to "vote-switchers" in swing districts.[16] They argued that if voters in close elections voted for the other party, and if just a few candidates of the other party won, then the EG might have come out very differently.[17] The defense stated that a plan that included such competitive districts could be found unconstitutional under the Plaintiffs' proposed standard.
           The Court decided to leave open the question of the requisite level of intent necessary to show a partisan gerrymander.[18] The Court stated that “the Defendant’s argument might serve as a suggestion to alter the Plaintiff’s test and perhaps shift the burden of production or burden of proof.”[19] However, the Court also determined that Plaintiffs have shown a redress-able injury and shown causation which effectively proved that Act 43 was designed for the purpose of solidifying Republican control.[20] The Court stated that just because there is no standard in Vieth, this did not mean that they could not decide this case. The Court laid out several elements to prove a partisan gerrymandering. First, the Court noted that reliance on the fact that political classifications alone is not enough, and that a mere lack of proportional representation is insufficient.[21] The Court also pointed out that the First and Fourteenth Amendments protect a citizen against State discrimination as to the weight of their vote. Thus, apportionment or redistricting plans which “invidiously minimize” the voting strength of “political groups” may be vulnerable to constitutional challenges.[22] The Court stated that the First and Fourteenth Amendments prohibit redistricting schemes which: 1) are 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.[23]
           The Court stated that a Plaintiff must prove that the Defendant acted with discriminatory purpose and intent and that intentional discrimination against an identifiable group would constitute partisan intent which offends the Constitution.[24] The Court describes that a “discriminatory purpose” constitutes a decision to act despite an awareness of negative consequences.[25] The Court stated that the Plaintiff must show intent to entrench power was a motivating factor but that it does not need to be the sole, dominant, or primary factor.[26] The Court next describes how to discern impermissible intent. They state that a sensitive inquiry should examine 1) the impact of the official action, 2) the historical background of the case, 3) the specific sequence of events leading to the challenge decision, 4) departures from the normal procedural sequence, and 5) legislative or administrative history; especially contemporary statements by members of the decision making body, minutes or reports.[27]
           The Court recognized significant evidence at trial which established that the purpose of Act 43 was to secure the Republican Party’s control of the state legislature for the decennial period.[28] The evidence showed that the Party first wished to develop a composite partisan score that accurately reflected the political makeup of population units, which would allow them to assess the partisan makeup of the new districts and succeeded in producing “a very accurate estimate of the underlying partisanship of the Act 43 maps.”[29] The Court found that the maps the drafters generated, as well as the statistical comparisons made of the various maps, revealed a focal point of the drafters’ efforts was a map that would solidify Republican control.[30] There were maps produced that were labeled “aggressive” which referenced “a more aggressive map with regard to GOP leaning.”[31] Maps compiled with traditional districting criteria also ensured significant partisan advantage.[32]
           The Court recognized evidence of spreadsheets that collected the partisan scores, by district, for each of the map alternatives, along with a corresponding table which listed the number of “safe” Republican seats, “lean” Republican seats, “swing” seats, “safe democratic seats, and “lean” democratic seats.[33] This information was sent to a political scientist to create an “S curve”[34] designed to “tease out a potential estimated vote” under a range of electoral scenarios, when either “the Democrats have a good year” or the Republicans have a good year.”[35] The evidence showed that the Defendants picked the “final map” where they 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.[36] The Defendants compared this map to the current map which had 49 seats which were 50% or better, but under the team map 59 assembly seats are 50% or better.[37] The S curve demonstrated with the new map that they could fall to 48% of the vote and would still preserve a 54 seat majority in the assembly and that Democrats would need 54% of the statewide vote to capture a simple majority of assembly seats.[38] The Court recognized evidence of memoranda provided to Republican leadership which detailed what percentage of the population in the old and new districts voted for Republican candidates in representative statewide and national elections held since 2004.[39] The memoranda did not provide the individual legislators with any information about contiguity, compactness, or core population.[40]
           The Court ultimately decided that, in the absence of explicit guidance from the Supreme Court, the most appropriate course is to evaluate whether the plan’s partisan effect is justifiable and can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process.[41] The Court noted that this approach is similar to the Supreme Court’s approach in analogous areas and is consistent with the Court’s approach in the state legislative malapportionment context.[42] The Court stated that the record before them did not require them to anticipate how the Supreme Court will resolve the allocations of proof on this issue because the evidence clearly showed that the Plaintiff carried their burden of proof.[43]
           The Court further state’s that the evidence made clear that, although Wisconsin’s natural political geography played some role in the apportionment process, it simply did not explain adequately the sizeable disparate effect seen under Act 43.[44] Witness testimony credibly established that Act 43’s drafters produced multiple alternative plans that would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage leading the Court to conclude that Act 43’s partisan effect could not be justified by legitimate state concerns and neutral factors that traditionally bear on the reapportionment process.[45] The Court next found that substantial portions of the record indicated that Wisconsin’s political geography affords Republicans a modest natural advantage in districting; something the Plaintiffs did not contest.[46] It was recognized by all that there is likely “some natural packing of Democratic voters, especially of minority voters in places like Milwaukee.”[47] However, the Court ultimately concludes that this inherent advantage did not adequately explain Act 43’s partisan effect.[48]
         Given the large amount of evidence tending to show an overt partisan gerrymander, it seems likely that the Supreme Court will affirm the decision in this case and adopt some of the District Court’s standards utilized in the decision; including the use of the EG as an objective measure to help determine when an impermissible gerrymander has occurred. However, this is far from certain. In the 2004 case Vieth v. Jubelirer, Justice Scalia, joined by three other justices, articulated a position which rejected partisan gerrymandering claims as nonjusticiable because there were no judicially discernible and manageable standards for adjudicating such a claim.[49] However, Justice Kennedy, in a concurring opinion stated that he would not “bar all future claims of injury from partisan gerrymander,” implying that he was open to the possibility of one day finding a workable standard. [50]
           Those who wish to see the Court affirm this ruling may have a glimmer of hope after the conclusion of oral arguments on October 3rd. Justice Kennedy asked a series of skeptical questions of the lawyers defending the Wisconsin legislative map and asked no questions of the lawyer representing the democratic voters who challenged the map.[51] The composition of the rest of the court seems to have remained fairly unmoved since the last gerrymandering case, so it stands to reason that so long as Justice Kennedy is convinced that a workable standard has finally been found, he will rule to affirm the lower court’s decision. This is sure to please some of the most notable critics of gerrymandering, including former Governor Arnold Schwarzenegger, former President Barack Obama and former Attorney General Eric Holder as well as the millions of citizens who are concerned for the well-being of our democratic system. [52]
           It is possible however, that Justice Kennedy will be unconvinced by the evidence or the methods used to determine where an unconstitutional gerrymander has occurred. If that happens, this case will likely be overturned. The consequences of such a decision could potentially be dire. It would send a signal to state legislatures across the country that they can use as much data and technology as possible to draw maps that clearly benefit their party. Once this signal is sent, there will be no going back as the court is unlikely to take up this issue again for quite a long time. As districts become safer for incumbents, they will have less need to act on behalf of their constituents to ensure their continued votes and may act on behalf of special interest donors. They will likely become more inclined to pander to their base of support and move further and further to the right or left of their respective political ideology in order to not lose their seat to challengers from the far extremes of their parties. This will push elected officials to adopt ever more extreme positions and give them less incentive to make any compromises or concessions with the opposing party. It will also have the result of hurting public confidence in our government and our electoral process. People already feel as though their votes don’t matter, imagine how they’ll feel when they realize that they’re in a district which has been drawn to always achieve a certain prearranged result.
           While some states, such as New Jersey, have fairer redistricting processes, many states, including Pennsylvania, have redistricting systems where the majority party essentially draws the lines. It is therefore up to the Supreme Court to decide whether we will continue to allow these district maps to be drawn in such blatantly partisan ways. The facts couldn’t be clearer. Legislatures have the data and technology to draw maps that clearly benefit themselves and undermine our democracy. This deliberate abuse of power cannot continue to be allowed. The integrity of our democratic process is on the line. It is unclear when the Court will announce their decision in this case, but millions of Americans, of all political affiliations, are holding their breath hoping that the Court makes the right decision.

*Senior Publications Editor for the Rutgers Journal of Law and Public Policy; JD Candidate 2018 Rutgers Law School
[1] Gill v. Whitford, 16-1161, See Scotusblog, (Last visited October 12, 2017, 10:17 AM).

[2] Whitford v. Gill, 2016 U.S. Dist. LEXIS 160811, 2 (W.D. Wis. 2016).

[3] Id. at 1.

[4] Id. at 2.

[5] Id.

[6] Id.

[7] Whitford, 2016 U.S. Dist. LEXIS 160811, at 1.

[8] Id. at 31.

[9] Id. at 32.

[10] Id. at 31-32.

[11] Id. at 34.

[12] Whitford, 2016 U.S. Dist. LEXIS 160811, at 34.

[13] Id. at 37.

[14] See Vieth v. Jubelirer, 541 U.S. 267 at 284-86 (plurality opinion); Id. at 308 (Kennedy, J., concurring) (Vieth arose out of a challenge to a Pennsylvania redistricting plan which plaintiffs argued was an unconstitutional gerrymander).

[15] Whitford, 2016 U.S. Dist. LEXIS 160811, at 38.

[16] Id.

[17] Id.

[18] Id. at 39.

[19] Id. at 38-39.

[20] Id. at 90.

[21] Id. at 110.

[22] Id. at 111.

[23] Id.

[24] Id. at 113.

[25] Whitford, 2016 U.S. Dist. LEXIS 160811, at 119.

[26] Id.

[27] Id. at 127-28.

[28] Id. at 129.

[29] Id.

[30] Id. at 132.

[31] Whitford, 2016 U.S. Dist. LEXIS 160811, at 132.

[32] Id.

[33] Id. at 132.

[34] Id. at 21-22 ("S curves give a visual depiction of how each party's vote share (on the x axis), ranging from 40% to 60%, relates to the number of Assembly seats that party likely will secure (on the y axis). Democratic seats are depicted by shades of blue, and Republican seats by shades of red. To produce the "S" curves, Professor Gaddie first used his regression analysis to calculate the expected partisan vote shares for each new district. He then shifted the vote share of each district ten points in either direction, from 40% to 60%, and assigned a color to districts that "tend[ed]" towards, or were "safe" seats, for that party”).

[35] Id. at 135.

[36] Whitford, 2016 U.S. Dist. LEXIS 160811, at 137.

[37] Id.

[38] Id. at 140.

[39] Id. at 141.

[40] Id.

[41] Whitford, 2016 U.S. Dist. LEXIS 160811, at 189-90.

[42] Id. at 190-91.

[43] Id. at 191.

[44] Id.

[45] Id. at 192.

[46] Whitford, 2016 U.S. Dist. LEXIS 160811, at 218-219.

[47] Id. at 218.

[48] Id. at 222.

[49] Supra, note 14 at 271.

[50] Vieth, 541 U.S. at 309.

[51] Liptak, Adam and Shear, Michael, Kennedy’s Vote is in Play on Voting Maps Warped by Politics, The New York Times (Oct. 3, 2017). (last viewed Oct. 12, 2017, 3:48 PM).

[52] Id.