The U.S. Supreme Court will hear oral arguments tomorrow in Gill v. Whitford, the partisan gerrymandering case from Wisconsin that could have implications for Texas’s current districts and the way they are drawn in the future. Justice Ruth Bader Ginsburg has described it as one of the most important cases of the Court’s fall term.
Gerrymandering is typically understood as the intentional manipulation of district boundaries on the basis of race to generate a specific racial outcome, often resulting in strangely shaped districts. The Wisconsin case however revolves around the drawing of districts based on partisan election results and patterns to generate a specific partisan outcome. In this case, plaintiffs argue that the Republican-controlled Assembly packed Democratic voters into districts and otherwise cracked blocs of them to ensure a greater Republican advantage than would otherwise occur. The state Assembly drew the districts in 2011. In the 2012 election, Democrats received 51% of the vote statewide yet captured just 39 of the chamber’s 99 seats (39%).
A three-judge federal panel agreed with the plaintiffs last year. They concluded that partisan motivations can play a role in redistricting – It is an inherently political process. – but this Assembly essentially went too far to “lock in” a Republican advantage. The panel concluded that the maps were “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.” This “discriminatory effect is not explained by the political geography of Wisconsin” and thus “constitutes an unconstitutional political gerrymander.”
On appeal, the state argued that the plan tossed out by the judges was very similar to a plan approved by a different federal court in 2002 that led to similar Republican advantages. Agreeing with the plaintiffs would create an “unthinkable and perverse loophole” permitting partisan-based challenges everywhere and likely convert any race-based gerrymandering claim to a partisan-based one.
The last time SCOTUS addressed the issue of partisan gerrymandering was 13 years ago in Vieth v. Jubelirer, a case out of Pennsylvania. At that time, the court, in a 5-4 decision, ruled that no reliable, predictable test of partisan gerrymandering existed, so, therefore, no case purporting it could be effectively decided.
The claims in Gill v. Whitford revolve around a measure called the “efficiency gap,” which tries to measure the extent to which votes are “wasted” in arriving at a specific partisan outcome. In this context, a vote for the losing party’s candidate is considered wasted – He or she didn’t win. – as is any vote for the winning party’s candidate in excess of the number required to win the race. The party with the greater number of wasted votes is at a disadvantage because its true level of support does not translate into seats, according to the plaintiffs’ theory.
An effective partisan gerrymander would pack voters supportive of one party into a few districts while spreading out the rest just thinly enough to lose most, if not all, of the remaining districts, according to the plaintiffs’ theory. The state argues that the efficiency gap measure ignores the geographic realities of how voters tend to concentrate themselves along partisan lines.
The efficacy of the efficiency gap measure is only one of several legal issues the Court faces in this case. Others include whether the lower courts misapplied prior precedents, whether individual plaintiffs have standing to challenge the statewide map (or just the district each resides in) and whether the plaintiffs may bring the partisan gerrymandering argument forward at all.
The Court recently stayed a pair of lower court decisions striking down a pair of Texas congressional districts and nine of its state House districts. Even without the presence of ongoing litigation over the state’s current districts, all of the districts will be redrawn in just four years. This case could have profound implications on that process.
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