Courts: Gill v. Whitford or, How to Steal Seats and Influence Elections



Late last year, a panel of three federal judges concluded in a 2-1 decision that the Wisconsin Legislature’s 2011 redistricting map of the State Assembly following the 2010 Census was an example of unconstitutional partisan gerrymandering. As per the procedural rules in cases involving redistricting lawsuits, appeals to District Court decisions are made directly to the Supreme Court, doing away with the Federal Court of Appeals middleman.

In March, the state of Wisconsin made an appeal to the Supreme Court to review the decision of the United States District Court for the Western District of Wisconsin. The hearing of this case could have enormous consequences nationwide, especially given that the Wisconsin Legislature was ruled to have violated both the First Amendment and the Equal Protection Clause of the 14th Amendment by attempting to diminish the representation of Democratic votes.

A common counter-argument to gerrymandering is geography - particularly human geography. Indeed, human geography provides Republicans with a natural bias in the electoral system because the party’s supporters are generally more dispersed than Democrats, who cluster in urban areas. This is not a purely American problem; according to Chen and Rodden, left wing parties perform better in more densely populated areas worldwide. Over the course of modern history, there are numerous explanations for this; for instance that industry and correlated unionizations generally require concentrated populations. And indeed, that rural areas are more conservative is observable everywhere.

Because of factors such as human geography, and the lack of an adequate formula to calculate partisan influence on populations, cases about partisan gerrymandering have been difficult to prove. However, in Wisconsin, the District Court ruled that such factors “simply does not explain adequately the sizable disparate effect” of the Republican gains – namely that in the 2012 elections, Republicans took 61 percent of the seats with a popular vote of only 48.6 percent. Subsequently, the court ruled the district lines were purposely redrawn to favor the Republican Party.

Striking down the practice of gerrymandering on partisan grounds is extremely rare – n-ay, virtually unheard of because, as a Supreme Court split decision in 2004 reiterated, there is no secure and appropriate way of discerning when political influence in redistricting has gone too far.

One might have thought redistricting had gone too far when it began to draw maps encompassing the absurd. For instance, Texas’ famous “bug splat district”, struck down by the Supreme Court in Bush v. Vera (1996). Or North Carolina’s highly-litigious 12th District, which during the 90s included sections no broader than Highway I8, in order to link and bunch together two black communities. However, the absurd in districting has been evident from much earlier. The term “gerrymander” itself is a portmanteau deriving from Governor Gerry of Massachusetts in 1812, and when a journalist described a redrawn district as looking like a salamander.

The Supreme Court decision of 2004 mentioned above, Vieth v. Jubelirer, will pay a pivotal role in Gill v. Whitford. Indeed, 3 of the 5 points for the Supreme Court to consider make direct mention of Vieth. It was the decision of Justice Kennedy in that case, indeed one particular sentence in that decision, which could play a decisive role in Gill v. Whitford. In Vieth, Kennedy concluded that the Supreme Court should stay out of that particular Pennsylvania dispute, but crucially, Kennedy suggested future action on partisan gerrymandering could be successful if a working standard could be determined.

Edward B. Foley, director of the Election Law Project at the Ohio State University Moritz College of Law said that it was Kennedy’s phrasing that left the door ajar. “The most important line” said Foley of Kennedy’s decision was: “The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself.”

Significantly then, it was a new mathematical formula that measures partisan redistricting known as the efficiency gap that swayed the federal judges in Wisconsin and may hopefully, given Kennedy’s open door policy from 2004, sway the Supreme Court as well.

The efficiency gap works by dividing the difference between the votes wasted by each party. Specifically, the division is done between “votes beyond those needed by the winning side, and votes cast by a losing side – by the total number of votes cast.” Basically, gerrymandering is the practice of trying to maneuver your party’s votes over a number of districts so evenly that an overall low amount of voters are able to win a high amount of districts. Hence they would have wasted very few votes. For example, in the eyes of a Democratic gerrymanderer, a district that votes 95 percent Democrat is wasting 44 percent of their votes. So, if both parties waste the same amount of votes, then the efficiency gap is zero, but if a winning party has a number of wasted votes that gets lower and lower, that results in a high efficiency gap score.

A review of over forty years of state redistricting found that a party with an efficiency gap of 7 percent or more had a good likelihood of winning their districts in the 10 year period before they would have to be redrawn again. In 2011, the Wisconsin Republicans scored an efficiency gap rating of 11.69 percent to 13 percent. Barry C. Burden, the director of the Election Research Center at the University of Wisconsin-Madison believes the efficiency gap measure “does almost exactly what Justice Kennedy said he was looking for”.

If the efficiency gap is able to accurately calculate whether a partisan advantage is naturally occurring, such as the result of human geography, or corrupt partisanship – gerrymandering. The whole shape of the electoral system could change at the next redistricting stage in 2021.

The practice of gerrymandering has accelerated rapidly since 2010 when the Republican strategy of focusing on gaining majorities in the states began to provide them with an overwhelming command to redistrict across the country. The Republican’s ability to control state legislatures has been so emphatic that Democrat’s share of state seats is at a historical low not seen since the term of President Harding. 

The efficiency gap factor may prove pivotal for the Supreme Court, as it has been the ingredient missing from all previous raids on partisan gerrymandering. Although waiting on final petition, Gill v. Whitford looks set to be decided by the Supreme Court next term. It is the best chance there has yet been to put a halt to a bipartisan corruption scheme that has been subverting American elections since the word “We.”