Gill v. Whitford

Gill v. Whitford is a Supreme Court of the United States court case regarding whether a voter redistricting plan created in 2011 for the State of Wisconsin used partisan gerrymandering. The Supreme Court case comes from an appeal made by the State of Wisconsin, challenging the decision of the District Court for the Western District of Wisconsin's ruling that the 2011 redistricting plan was unconstitutional.

Background

While the Supreme Court of the United States has ruled that redistricting that discriminates on racial or ethnicity grounds is unconstitutional, the Court has been reluctant to issue a similarly strong ruling for partisan redistricting. The Court has ruled that excessive partisan gerrymandering violates the Constitution. However, the ruling has yet to adopt a standard for determining partisan gerrymandering in redistricting—with proposed tests being too ambiguous to apply by the courts.^[1][2] In the decision for the 2004 case Vieth v. Jubelirer, which ruled that perceived partisan gerrymandering in the State of Pennsylvania was not unconstitutional, the nine Justices were split. The four Justices in the plurality believed it was impossible to define a standard to judge partisan gerrymandering, while four others could not agree on an existing standard to be used. Justice Anthony Kennedy, in his concurrence with the plurality, believed that some manageable standard for determining partisan gerrymandering could be developed, and challenged lower courts to help identify this standard.^[3][4]

Wisconsin redistricting

In 2011, Republican legislators in Wisconsin redrew the state Assembly districts based on the latest 2010 census data. The 2011 mapmakers developed a model for evaluating voter partisan preferences in aggregate, and drew up spreadsheets identifying the likely winner in various proposed districts labelling potential maps with “assertive” or “aggressive,” indicating how likely that map was to elect Republicans. They also collaborated with a political science professor that said of the final maps, "that Republicans would maintain a majority under any likely voting scenario".^[3] Under the “final map,” 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.”^[5] The new redisticting map was approved by the State as Act 43, in August 2011.^[3] Reflecting this, in the 2012 elections, the Republicans gained 60 percent of the seats in the State Assembly, despite receiving only 49 percent of the statewide vote in 2012.^[1][3]

District Court

On July 8, 2015, the case was filed with the U.S. District Court for the Western District of Wisconsin arguing that Wisconsin’s 2011 state assembly map was unconstitutional partisan gerrymandering favoring the Republican-controlled legislature which discriminated against Democratic voters.^[6] The case was filed by the Campaign Legal Center (CLC), representing twelve plaintiffs that were registered Democrats.^[7] The lead plaintiff, Professor William Whitford, from University of Wisconsin, stated, "In a democracy citizens are supposed to choose their legislators. In Wisconsin, legislators have chosen their voters."^[8] The plaintiffs argues that the map violates the Fourteenth Amendment’s guarantee of equal protection.^[9] Whitford's complaint specifically claimed that the redrawn maps purposely diluted Democratic voters so that they would be wasted votes (that is, "cracking" the votes) while organizing a small number of districts to pack in a large number of Democratic voters to limit the number of seats the party would win ("packing" the votes).^[3][4] The District Court case was originally filed as Whitford v. Nichol, as Gerald Nicole had been the chairman of the state elections board; he was succeeded by Beverly Gill during the course of the case.^[1]

Map of the 2014 Wisconsin State Assembly.

In 2016, a three-judge federal panel allowed the case to proceed to trial, the first time a case regarding gerrymandering has proceeded in three decades. On November 21, 2016, a 2-1 decision declared that the map was unconstitutional.^[3] To assess the validity of the map, the panel developed a three-pronged test that asked if the redistricting "(1) [was] 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."^[5] The panel judged these prongs based on whether they created an entrenchment of power, specifically defined as "making that party—and therefore the state government—impervious to the interests of citizens affiliated with other political parties", which has been the basis for unconstitutional gerrymandering in the past.^[3] In the panel, Judge Kenneth Ripple’s opinion, joined by Judge Barbara Crabb, was that the map worked better than its drafters had hoped. “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%.”^[5]

The panel also used the Efficiency Gap measure, developed in 2014 by law professor and lead prosecutor for the plaintiffs Nicholas Stephanopoulos, and political scientist Eric McGhee.^[10][7] The Efficiency Gap relates the number of wasted votes for each party across the state, with a gaps of 0% equating to a fair distribution. By definition, an Efficiency Gap of more than 7% would have allowed the Republicans to retain their advantage throughout the life of the Act 43 map.^[11] The panel determined that the Efficiency Gap was 13% and 10% for the 2012 and 2014 elections, respectively, exceeding the 7% criteria.^[3]

Judge William Griesbach dissented, believing that there were more appropriate measures they could take to prevent partisan gerrymandering, such as requiring a non-partisan redistricting panel. Griesbach also believed that the entrenchment principle would not be accepted by the Supreme Court over more traditional methods of measuring deviation, and that the use of the relatively new Efficiency Gap measure mischaracterizes the nature of a wasted vote.^[3]

The District Court's decision was seen as potentially satisfying the requirements for a test requested by the Supreme Court in Vieth; the three-prong test provided by the Court was able to distinguish between inherent and invidious gerrymandering through the narrowly defined anti-entrenchment principle through the lifetime of the districting map. It also introduced reproducable measurements through the Efficiency Gap that allow biases redistricting schemes to be quantified.^[3][12]

The panel deferred its ruling on the remedy which was handed down on January 27, 2017.^[13] The District Court ordered the State of Wisconsin to redraw their districts by November 1, 2017 as remedy for the case, using proposals brought by the plantiffs to guide their decisions.^[3]

Supreme Court appeal

The State announced its intentions to appeal to the Supreme Court of the United States following the District Court's ruling in November 2016. Due to special procedures in the Supreme Court involving voters' rights cases, the Supreme Court was required to take the case, though whether they would summarily rule to affirm or reverse, or hear the case in full, would be up to the discretion of the Court.^[4] The State asked that the action in the District Court be put on hold until the appeal is decided. The State requested that the Supreme Court overturn the trial court’s decision and allow the Legislature to continue drawing its assembly maps.^[14] The State was joined through amicus curiae briefs filed by twelve other states led by Texas.^[15] Separately, the CLC and its co-counsel from the District Court filed a Motion to Affirm the District Court's ruling on May 8, 2017.^[15]

In June 2017, the Supreme Court agreed to hear the state's challenge to the District Court's decision in the case Gill v. Whitford, granting the request to put the remapping action on hold. Oral arguments are expected to be heard later in 2017. It will be the first time that the Supreme Court will evaluate partisan redistricting based on the First Amendment's freedom of association clause in addition to the Equal Protection Clause.^[16][17] Oral arguments will be given by Paul Smith of the CLC, representing the original plaintiffs, and by Misha Tseytlin, the Wisconsin Solicitor General.^[15]

The Court's decision is expected to hinge on the decision of Justice Kennedy, who had held a middle ground in Vieth and wrote in his opinion about the need to find a "manageable standard" to determine if a partisan gerrymandering had occurred.^[4] Commentators observed that the stay of the District Court order was split 5-4, with Kennedy supporting the majority.^[16]

See also

• Davis v. Bandemer
• Vieth v. Jubelirer
• League of United Latin American Citizens v. Perry

References