Gill v. Whitford

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Gill v. Whitford
Supreme Court of the United States
Full case nameBeverly R. Gill, et al. v. William Whitford, et al.
Docket no.16-1161
Case history
PriorOn appeal of Whitford v. Gill in United States District Court for the Western District of Wisconsin, No. 15-cv-421 (W.D. Wis. 2017)

Gill v. Whitford is a United States Supreme Court case involving the constitutionality of partisan gerrymandering. Other forms of gerrymandering based on racial or ethnic grounds are deemed unconstitutional, and while the Supreme Court has identified that extreme partisan gerrymandering can also be unconstitutional, the Court has not agreed on measures when this can be defined, leaving the question to lower courts to decide.Cite error: The <ref> tag has too many names (see the help page).

The case arose following the 2011 redistricting plan for the State of Wisconsin created by Republican legislators to maximize the likelihood that the Republicans would be able to secure additional seats in the State's Congress over the next few election cycles. The plan was challenged by Democratic citizens, claiming the redistricting plan made their votes "wasted". The case was filed in 2015, and by 2016, the District Court for the Western District of Wisconsin ruled in favor of the Democrats, based on the evaluation of the efficiency gap measure developed for this case, and ordered Wisconsin to redo its districts by 2017. The State appealed the ruling to the Supreme Court, which heard the case in October 2017 and is expected to issue its ruling in June 2018.

While some political scientists agree that Wisconsin's map was heavily biased, it is expected that the case will center if the efficiency gap measures and other metrics provided by other political scientists meet the criteria that Justice Anthony Kennedy had set forth in his decision from Vieth v. Jubelirer (2004), the previous Supreme Court case dealing with partisan gerrymandering.

Background

While the Supreme Court of the United States has ruled that redistricting that discriminates on racial or ethnic 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 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 argued 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]

Chart 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 Francis Ripple’s opinion, joined by Judge Barbara Brandriff 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 C. 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.[16] 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.[17][18] The case received at least 54 amicus curiae briefs across numerous fields.[19] Among these included several political scholars which had the consensus that "by any measure, Wisconsin’s 2010 redistricting plan is extremely biased".[20] These scholars introduced other metrics besides the efficiency gaps that equally demonstrated the partisan bias in Wisconsin's plan, which were expected to be considered to be evaluated by the Justices.[21]

Oral arguments were heard on October 3, 2017 as the first before the Court in its new term.[16] Oral arguments were given by Paul Smith of the CLC, representing the original plaintiffs, and by Misha Tseytlin, the Wisconsin Solicitor General.[15] Erin E. Murphy participated in oral argument as an amicus on behalf of Wisconsin's State Senate.[22] Smith argued that while the Court's previous attempts to regulate partisan gerrymandering failed due to lack of a usable measure, modern statistics and advanced computing available today made it very easy for the Wisconsin Republicans to create their favorable redistricting plan, but these tools would be just as useful to determine when partisan gerrymandering had occurred. Smith also iterated that the Supreme Court was "the only institution in the United States ... that can solve this problem".[23] Tsetylin warned the Court that should they find against the State, that redistricting would become heavily influenced by social science metrics, and that it would "shift districting from elected public officials to the courts".[22]

Court observers identified that the Justices were split from the oral session. The four Justices that were considered liberal appeared to side with the original plantiffs in arguing that the redistricting plan was biased, with Justice Ruth Bader Ginsburg proposing that if they did not intervene here, Republicans would likely be able to stack other states in a similar manner, and it would de-incentive voters not favored by such redistricting plans to vote. Four of the conservative Justices felt the Court should not intervene, with Chief Justice John Roberts fearing that if they get involved, it would open up for more redistricting challenges that the Supreme Court would need to take up, and could harm the Court's credibility.[24][25] The conservative Justices also questioned if the defendants had legal standing to bring the case forward in the first place.[23]

The decision is expected to hinge on 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.[17] During the oral arguments, Kennedy had appeared to side with the conservatives on asking about the legitimacy of the original plantiffs in bringing the case, but asked both sides difficult questions relating to the redistricting approaches, leaving it difficult for observers to tell which way he would decide.[23] However, some writers expect he will side with the lower court and not for the appellants.[26][27][28]

A decision in the case is expected by June 2018.[23]

See also

References

  1. ^ a b c "Whitford v Gill Documents (Wisconsin)". Fair Elections Project. Retrieved 2016-12-30.
  2. ^ Reporter, Ariane de Vogue, CNN Supreme Court. "Supreme Court tackles racial gerrymander cases". CNN. Retrieved 2016-12-30. {{cite web}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link)
  3. ^ a b c d e f g h i j k "Whitford v. Gill". Harvard Law Review. 130: 1954 1961. May 10, 2017. Retrieved June 19, 2017.
  4. ^ a b c d Gerken, Heather (December 1, 2016). "A Wisconsin court case may be the last best hope to fix gerrymandering by 2020". Vox. Retrieved June 19, 2017.
  5. ^ a b c Millhiser, Ian (2016-11-21). "Republican maps struck down as unconstitutional partisan gerrymander". ThinkProgress. Retrieved 2016-12-30.
  6. ^ "Whitford v. Gill | Brennan Center for Justice". www.brennancenter.org. Retrieved 2016-12-30.
  7. ^ a b Wines, Michael (November 21, 2016). "Judges Find Wisconsin Redistricting Unfairly Favored Republicans". The New York Times. Retrieved June 20, 2017.
  8. ^ "Professor Bill Whitford's federal lawsuit against partisan gerrymandering". Retrieved 2016-12-30.
  9. ^ "Whitford Complaint Filing July 8, 2015" (PDF). 2015-07-08. Retrieved 2016-12-30.
  10. ^ Stephanopoulos, Nicholas; McGhee, Eric (2014). "Partisan Gerrymandering and the Efficiency Gap". University of Chicago Law Review. 82: 831–900. SSRN 2457468. Wasted votes and efficiency gap are defined pp. 850–852.
  11. ^ Matthews, Dylan (June 19, 2017). "How 2 academics got the Supreme Court to reexamine gerrymandering". Vox. Retrieved June 19, 2017.
  12. ^ Shmilovich, Julia (April 5, 2017). "Whitford and the Elusive Standard for Political Gerrymandering". National Law Review. Retrieved June 19, 2017.
  13. ^ "Whitford Remedial Opinion January 27, 2017" (PDF). 2017-01-27. Retrieved 2017-03-20.
  14. ^ "Wisconsin citizens want legislative maps redrawn before next elections". Wisconsin Gazette. 2016-12-22. Retrieved 2016-12-30.
  15. ^ a b c Coyle, Marcia (June 19, 2017). "The Next Big Political Case at the Supreme Court: 6 Key Questions". National Law Journal. Retrieved June 20, 2017.
  16. ^ a b "The Supreme Court's new term". The Economist. September 29, 2017. Retrieved September 29, 2017.
  17. ^ a b Liptak, Adam (June 19, 2017). "Justices to Hear Major Challenge to Partisan Gerrymandering". The New York Times. Retrieved June 19, 2017.
  18. ^ Grofman, Bernard (January 31, 2017). "The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map". The Washington Post. Retrieved June 19, 2017.
  19. ^ Wines, Michael (October 1, 2017). "How a Wisconsin Case Before Justices Could Reshape Redistricting". The New York Times. Retrieved October 2, 2017.
  20. ^ Rocco, Philip (2017-10-04). "Analysis | Justice Roberts said political science is 'sociological gobbledygook.' Here's why he said it, and why he's mistaken". Washington Post. ISSN 0190-8286. Retrieved 2017-10-04.
  21. ^ Burden, Barry (October 1, 2017). "Everything you need to know about the Supreme Court's big gerrymandering case". The Washington Post. Retrieved October 2, 2017.
  22. ^ a b Liptak, Adam; Shear, Michael (October 3, 2017). "Justices Split on Voting Maps Warped by Politics". The New York Times. Retrieved October 3, 2017.
  23. ^ a b c d Chung, Andrew (October 3, 2017). "Supreme Court justices divided in major voting rights case". Reuters. Retrieved October 3, 2017.
  24. ^ Sherman, Mark (October 3, 2017). "Supreme Court justices seem divided in key Wisconsin case about partisan districts". Associated Press. Retrieved October 3, 2017 – via The Chicago Tribune.
  25. ^ Stohr, Greg (October 3, 2017). "Gerrymandering Opponents Get Mixed Reception at Supreme Court". Bloomberg Businessweek. Retrieved October 3, 2017.
  26. ^ Liptak, Adam; Shear, Michael D. (2017-10-03). "Kennedy's Vote Is in Play on Voting Maps Warped by Politics". The New York Times. ISSN 0362-4331. Retrieved 2017-10-11.
  27. ^ "Justice Anthony Kennedy holds the key to ending partisan gerrymandering forever". Newsweek. 2017-10-05. Retrieved 2017-10-11.
  28. ^ Roeder, Oliver (2017-10-04). "What Justice Kennedy's Silence Means For The Future Of Gerrymandering". FiveThirtyEight. Retrieved 2017-10-11.
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