SCOTUS’s Last Chance to Rein in Partisan Gerrymandering?

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

The U.S. Supreme Court could radically change how states draw their districts for federal and state elections as Republicans and Democrats are preparing to battle over the next redistricting cycle.

More than 30 years ago, the high court said that considering party affiliation too much in redistricting could cross the line into unconstitutional gerrymandering. But the Supreme Court provided little guidance and federal courts have since struggled to find where that line is.

As a result, states defending allegations that they unconstitutionally relied on race when drawing voting maps often say they were merely relying on politics.

That could end—or at least be seriously curtailed—if the Supreme Court decides to hear Gill v. Whitford.

There, Democratic voters challenging the maps in Wisconsin think they’ve found a way to measure when political consideration in redistricting crosses the line. And a lower court agreed.

Wisconsin Republicans unconstitutionally created maps that disadvantaged Democratic candidates when they drew up new voting maps in 2010, a special three-judge district court panel said in a stunning decision last November. The panel relied on a new standard—the “efficiency gap”—to measure that disadvantage.

That standard attempts to measure the efficiency with which the parties can elect their candidates by calculating the number of votes their voters “wasted.” An efficiency gap in favor of one party suggests that the other was disadvantaged in the voting process.

Now Wisconsin—supported by a dozen other states—is asking the Supreme Court to step in.

The new standard the lower court blessed doesn’t take into account political realities, they argue.

Moreover, the suit threatens to put federal courts even more in the middle of an area historically reserved to state legislatures, Hans von Spakovsky, who heads the conservative Heritage Foundation’s Election Law Reform Initiative, told Bloomberg BNA.

It’s highly likely the Supreme Court will agree to take up the case due to procedural oddities with redistricting cases, Paul M. Smith, of the Campaign Legal Center, Washington, told Bloomberg BNA. Its “hard to imagine” the justices turning this case away, Smith, who represents the voters challenging the voting maps, said.

This may be one of the last opportunities to convince a majority of justices that the judiciary is capable of policing these claims, Rick Hasen, an election law professor at University of California, Irvine, School of Law, told Bloomberg BNA.

Rumors that Justice Anthony M. Kennedy will retire soon are swirling, and he could provide the critical fifth vote in this area that has often split along ideological lines.

The court will consider whether to hear the case during its June 8 private conference.

Looming Battle

The next redistricting cycle, which will take place after the 2020 census, is looming in the background as the Supreme Court considers whether to take up this potentially pivotal case.

Voter maps for state and federal elections are reenacted every ten years, following the decennial census. In most states, those maps are set by the state legislature.

“After losing the presidency in 2008, Republicans” enacted favorable voter maps with “spectacular success,” Albert R. Hunt said in a March 12 Bloomberg View column. Republicans “now hold 29 governorships and control legislatures in two dozen states with 800 more lawmakers than eight years ago,” Hunt said.

Top Democrats, including former President Barack Obama, are preparing to fight back.

They’ve set up the National Democratic Redistricting Committee, headed by former Attorney General Eric Holder, in an effort to regain some footing before the next redistricting cycle.

But the Supreme Court could change the rules before that effort gets off the ground.

Jumping In

As of now, the Supreme Court’s case law in this area is far from clear.

The court first waded into the issue of “partisan gerrymandering” in 1986. In Davis v. Bandemer, the court said that the equal protection clause prohibits states from overly disfavoring political parties in the redistricting process and, importantly, that courts could properly police such claims.

However, the court did not accept the standard under which the lower court had invalidated the disputed maps, saying that standard was “insufficiently demanding.” The Supreme Court could not agree on what the proper standard should be.

The Supreme Court still hadn’t come up with a “judicially discernible and manageable standard” for adjudicating partisan gerrymandering claims when it was asked to do so, 18 years later, in Vieth v. Jubelirer.

Four justices thought that the ensuing years had proven there was no judicially manageable standard, and, therefore, that courts should get out of the business of policing such claims. Four justices believed there could be judicially manageable standards, but among them they suggested three different tests.

Justice Anthony M. Kennedy was in the middle.

He didn’t agree with his four colleagues that no manageable standard existed, but he didn’t buy any of the standards his other colleagues put forth either.

Another thirteen years later, the high court hasn’t made any progress.

Sun Rises in N.C

The uncertainty in the realm of partisan gerrymandering has affected claims involving racial gerrymandering—the idea that states can’t overly consider race during redistricting.

In the recent Supreme Court case Cooper v. Harris, North Carolina officials defending the state’s voter maps against claims of racial gerrymandering said that politics, not race, influenced some of their map-making decisions.

The fact that North Carolina “brought in a bunch of African-Americans” to certain districts “because they were trying to bring in Democrats is about as interesting as the sun coming up in North Carolina, because everybody agrees there’s about a 90 percent correlation between race and partisan identity,” North Carolina’s attorney Paul Clement told the justices during the December oral argument.

The Supreme Court ultimately rejected that defense. But the issue hasn’t completely gone away.

After the trial court struck down the North Carolina districts in 2016, the state redrew them. This time it emphasized its desire to benefit Republicans, rather than concentrating on race.

The plaintiffs challenged the new districts as well, this time as unconstitutional partisan gerrymanders. The Supreme Court is presently considering whether to review that challenge.

North Carolina’s experience shows the correlation between race and party, Hasen said.

In fact, racial gerrymandering claims are often just partisan gerrymandering claims in disguise, he said.

If the court found a way to actually police partisan gerrymandering, there would be less of a need to bring highly charged racial gerrymandering suits, Hasen said.

Time Short

Time may be running short, however.

Along with the Wisconsin and North Carolina cases, there is a partisan gerrymandering case from Maryland and yet another from North Carolina on the horizon, Hasen said.

If Kennedy retires soon, these cases may be the last opportunity to convince a majority of the court that a judicially manageable standard for policing partisan gerrymandering exists, he said.

Gerrymandering cases are often decided by the court along ideological lines with the liberal-leaning justices endorsing a strong judicial role in preventing gerrymandering. It’s unlikely that President Donald Trump would nominate someone inclined to rule with those urging the court to police partisan gerrymandering.

‘Efficiency Gap’

The Wisconsin plaintiffs here think they’ve found the test Kennedy has been looking for: the “efficiency gap.”

“The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast,” a special three-judge district court panel said in Whitford v. Gill.

In any given district, every vote for the losing party, and every vote for the winning party in excess of the number of votes needed to win, is a wasted vote.

“When two parties waste votes at an identical rate, a plan’s EG is equal to zero. An EG in favor of one party, however, means that the party wasted votes at a lower rate than the opposing party,” the district court said.

“Because the party with a favorable EG wasted fewer votes than its opponent, it was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats,” it said.

The efficiency gap is a judicially manageable standard of political gerrymandering because it’s “simple, direct, and easy to apply,” Smith said.

In Wisconsin, recent efficiency gaps demonstrate the incongruity between the political affiliation of an evenly split electorate and the Republican-held state assembly, he said.

“In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while losing the statewide vote,” Smith said in his Supreme Court brief. In 2014, “Republicans extended their advantage to sixty-three” seats, “even though the statewide vote remained nearly tied. Republicans thus wield legislative power unearned by their actual appeal to Wisconsin’s voters.”

This led to an efficiency gap of 13.3 percent in 2012 and 9.6 percent in 2014 in favor of Republicans, the brief said. “That is, votes for Democratic Assembly candidates were wasted at a rate from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted,” it said.

The efficiency gap thus proves that this “pro-Republican skew is no accident,” the brief said.

Political Geography

But the efficiency gap doesn’t take into account “political geography,” Jason Torchinsky, of Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, Va., told Bloomberg BNA. Torchinsky specializes in election law and filed an amicus brief in support of Wisconsin.

“It is well-known to researchers and the courts that voters who support Democrats are often tightly clustered in cities, while Republicans are more evenly distributed outside of urban areas,” Torchinsky’s brief said.

This “clustering of Democratic voters in compact urban areas has the natural—and unintended—outcome of creating more Republican districts when using the traditional redistricting criteria of equal population, compactness and contiguity,” the brief said.

But the Wisconsin district court said that although “Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizeable disparate effect seen in 2012 and 2014.”

It said that the state had “produced multiple alternative plans that would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage.” The partisan advantage here, then, cannot be explained solely by “neutral factors that traditionally bear on the reapportionment process,” the district court said.

Nevertheless, the efficiency gap would be a judicially imposed partisan advantage in favor of Democrats, Torchinsky said. That’s because the efficiency gap takes the natural clustering of Democratic voters and labels it improper “packing” of Democrats into one district, Torchinsky said. That packing will lead to so-called wasted Democratic votes, he said.

In that way, the “unavoidable consequence of adopting” the efficiency gap “will be to benefit one political party (the Democrats) at the expense of another (the Republicans),” the brief said.

‘Serious Problem’

Any measure allowing federal courts to police partisan gerrymandering claims would further insert federal courts, and especially the Supreme Court, into an area that is traditionally reserved for the states, von Spakovsky said.

That’s in part because of the special procedures that apply to redistricting cases. Such cases are heard by special three-judge district court panels and are appealed directly to the Supreme Court, bypassing the lower federal appellate courts.

Chief Justice John G. Roberts Jr. suggested that those procedures, especially the direct appeal, force the Supreme Court into these politically charged cases. It’s “a serious problem because there are a lot of cases that come up in three judge district courts that would be the kind of case” that the court might not review so that the issue can “percolate” in the lower courts. But “with the three-judge district court, no, we have to decide it on the merits,” Roberts said during oral argument in a 2015 redistricting dispute.

If the problem is bad now, allowing partisan gerrymandering claims to go forward would increase the problem “exponentially,” because it would encourage even more challenges to redistricting plans, von Spakovsky said.

SCOTUS Review Likely

Nevertheless, the Supreme Court is likely to be forced into deciding whether partisan gerrymandering claims are capable of being policed by the federal judiciary.

Unlike most decisions by the Supreme Court not to hear a case—known as denying certiorari—turning away a redistricting case constitutes a ruling on the merits, Hasen said. Summarily affirming the district court’s decision signals that it got the outcome right, even if for the wrong reason, he said.

Such a result here would create even more uncertainty in lower courts regarding the proper standard to judge partisan gerrymandering claims, Hasen said.

Therefore, it’s “extremely likely” that the court will set this case for oral argument, he said.

The Wisconsin Attorney General’s Office did not return a request for comment.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law