UPDATED EDITION FOR SPRING 2018
[This is the material for the lecture being delivered after Test Two. Students must therefore read it, especially those who are not present for the lecture in class that night. This case is going to have important consequences no matter which way the decision goes. And the decision, most likely, belongs to Anthony Kennedy.]
There’s nothing new under the sun about the political party in power in a state legislature drawing district lines throughout the state to keep itself in power, a practice that has been called gerrymandering since the early 19th century. But after the 2010 census, the Republicans in the Wisconsin legislature practiced gerrymandering with a vengeance or, as one commentator calls it, “gerrymandering on steroids.” They used a sophisticated computer program to design a map of districts which, though effectively equal to each other in population size (more on that below), would produce a substantial majority of districts where the Republicans securely outnumbered the Democrats. In the most recent election, while slightly fewer than half the voters voted for Republican candidates, the Republicans got 60 out of 99 legislative seats.
This may look brazenly unfair, but does it violate the Constitution? That’s what the Supreme Court is currently being asked to decide, and as things look now, there are three categories of Supreme Court justices:
- Four of the Republican appointees (commonly called the conservatives)–John Roberts, Samuel Alito, Clarence Thomas, and the new Trump appointee Neil Gorsuch–who don’t think partisan gerrymandering is judiciable (meaning fair game for courts to rule on). For them, because partisan gerrymandering is not judiciable, it doesn’t even matter whether there’s a problem in this particular instance.
- The four Democratic appointees (commonly called the liberals)–Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor–who think partisan gerrymandering is very judiciable and who can be counted on to say that there’s a huge constitutional problem with Wisconsin’s new system.
- Anthony Kennedy. This Republican (Reagan) appointee has written in past cases that partisan gerrymandering could be judiciable even though, in the cases involved, he sided with the justices who declined to say that the particular instances involved in those cases showed any violation of the Constitution. Put another way, he has never voted to interfere with gerrymandering, but he has left open the possibility that he might interfere with it in the future.
I mentioned above that the program that Wisconsin used made sure that the districts were fairly equal in population size. Why? Because there are Supreme Court rulings that say that they do have to do that. The key one is Reynolds v. Sims (1964). There, the Warren Court by an 8-1 vote required states to make districts reasonable equal in size in order that, throughout a state, each citizen’s vote would have equal influence on the legislature. That is called “one person, one vote.” (Back then, they called it “one man, one vote,” because the masculine-by-preference usage, the same as when Jefferson wrote “all men are created equal,” had not yet fallen into big disfavor.) The Constitutional principle in that case was the Fourteenth Amendment’s “equal protection” clause.” Here’s an excerpt from that 8-1 ruling that was written by Chief Justice Earl Warren:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.
It should also be noted that the Supreme Court has interfered with racial gerrymandering. When district lines are drawn expressly to keep non-white voters outnumbered and thus uninfluential as a possible voting bloc, the Supreme Court has used the Fourteenth Amendment against that. Partisan gerrymandering is different.
For those who want the federal courts to stop partisan gerrymandering, the challenge has been to find a viable criterion, a viable formula to show that equal protection is being denied to citizens. That is where this Wisconsin case comes in, a case in which the Supreme Court heard arguments in early October 2017 and will probably issue a ruling sometime in spring 2018. (By the way, at this point in time, we can assume that the nine justices know what the ruling is going to be, because, although it takes them months to issue a ruling, it only takes them a couple of days to deliberate and take the vote.) The group in Wisconsin that is challenging the state’s system has come up with such a formula, and it’s that formula that’s being tested.
According to the group challenging Wisconsin’s system, the setup of “cracking and packing”–cracking the Democrats into a minority position in most districts while packing them together into a majority in a few districts–ensures that the Democrats will have more “wasted votes” than the Republicans. They define a “wasted vote” as a vote that won’t make any difference to the outcome, either because it is hopelessly outnumbered (in the Democratic-cracked districts) or because it is part of a huge surplus (in the Democratic-packed districts). When one party has far more “wasted votes” than the other, according to this theory, especially when advanced computer software has been used to make sure that this will be the case, the state is violating the Fourteenth Amendment, denying persons the equal protection of the laws. Here’s an excerpt from the lower court’s decision, summarizing that argument:
According to the plaintiffs, in drafting Act 43, the Republicans employed two gerrymandering techniques: “cracking“—”dividing a party’s supporters among multiple districts so that they fall short of a majority in each one”—and “packing“—”concentrating one party’s backers in a few districts that they win by overwhelming margins,” in order to dilute the votes of Democrats statewide. This “cracking and packing result[ed] 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).” They therefore urge the court to adopt a new measure for assessing the discriminatory effect of political gerrymanders—the efficiency gap (or “EG”). “The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” 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. It is in this sense that the EG arguably is a measure of efficiency: 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. In short, the complaint alleges that Act 43 purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.
If the Court rules against the Wisconsin system, there may well be nationwide chaos as every state’s districting plan suddenly starts coming under the scrutiny of the federal courts, because you can be sure that all manner of fine points will start getting argued in future districting cases. But if the Court allows the Wisconsin system to stand, you can be equally sure that, after the 2020 census, precisely that system will become standard operating procedure by both parties, making it much harder for the pendulum to swing back and forth for the two parties coming in and out of power. And if the pendulum gets stuck on one side, as things stand now, that side will be the Republicans.
Full text of the decision by the Federal District Court in Wisconsin that ruled against Wisconsin’s gerrymandering plan (issued November 2016)
NPR report by Nina Totenberg explaining the issue (text, not audio) October 3, 2017
NPR report by Nina Totenberg after the Court heard arguments (text and audio), October 3, 2017
More recently, Pennsylvania’s State Supreme Court, in a ruling that will affect only Pennsylvania, ruled that the gerrymandering of that state’s Congressional districts is unconstitutional as a violation of the state constitution’s guarantee of equal protection (NPR report, January 22, 2018). The U.S. Supreme Court refused to interfere with the ruling (NPR report, February 5, 2018).
Like another current case that we’re following, the one involving the wedding cake baker in Colorado, the Wisconsin case before the Supreme Court may not be decided until after we’ve all wished each other a good summer and parted ways, but you should in any event be paying close attention and watching for it.