• Reading Tea Leaves from Arguments in Gill v. Whitford: 5 Lessons from an Election Law Revolution
  • November 8, 2017 | Author: Cullen D. Seltzer
  • Law Firm: Sands Anderson PC - Richmond Office
  • In Wisconsin, legislative assembly elections are like Alice – they’re through the looking glass. After redistricting in 2011, Wisconsin Republicans lost the popular vote for legislative seats with only 49% of the votes cast. Nevertheless, they still won 60% of the seats. When they later won the popular vote with 52% of the vote, their advantage in the legislature grew to 64% of the seats.

    What magic accounts for this “heads I win, tails you lose” electoral voodoo? Big Data gerrymandering. Wisconsin Republicans retreated to the safe confines of a law firm’s conference room where they used data modeling to precisely draw district boundaries. Not only was the process secret from the public, legislators who came to visit the law firm to see their own proposed district boundaries signed confidentiality agreements. From this dimly lit process emerged numerous draft boundary maps, each one more carefully drawn than the last, to ensure an enduring Republican majority in the legislature.

    And it worked. (Lest one think that only Republicans would wallow in this sort of skullduggery, the instinct to overreach appears to be a bipartisan one – Democrats in Maryland have stuck the knife in pretty well themselves.)

    All of that, in today’s Supreme Court arguments, isn’t much in dispute. What’s in dispute is whether the Constitution cares about it. Challengers say the First Amendment’s right to association is infringed by this over-bearing partisan gerrymandering. So, too, are voters’ Equal Protection rights to have their votes counted equally. Here’s a fuller read on the lower court ruling that’s been appealed by Wisconsin to the Supreme Court.

    Gill v. Whitford could change American politics and election law for a generation. Here are five lessons from today’s oral argument.

    Lesson 1: If Wisconsin’s Gerrymandering is Struck Down, It’s Going to be in a Narrow Ruling.

    Challengers to the Wisconsin gerrymander pointed out at length today that the Wisconsin map they don’t like is a historical outlier. Experts testified at trial that the map resulted in among the most distorted partisan maps they’d ever reviewed. Statistical analysis pegged these maps as among those most intended to give a partisan advantage and most calculated to make the partisan advantage enduring.

    Political considerations, generally, won’t doom a district drawing. But counsel for the challengers, Paul Smith, agreed with Justice Kagan that “outlier” maps are the sort of gerrymanders that ought to be ripe for being struck down.

    Maps set by courts, or by a bipartisan commission, or otherwise established outside “one-party rule” in a state, aren’t the sort of boundary settings that should be susceptible to a Constitutional partisan gerrymandering challenge.

    All of which is to say that challengers to gerrymandering didn’t ask the Court to take politics out of redistricting. The Court, even if it rules against Wisconsin’s map, is almost certain to limit its holding to the most extreme cases of gerrymandering.

    Lesson 2: Justice Breyer has a convenient four-part test to stop partisan gerrymandering.

    Justice Breyer suggested a four-part test to gauge whether a legislature has unconstitutionally discriminated on partisan grounds. Justices Ginsburg, Kagan, and Sotomayor all seemed to like the test. Smith, for the challengers, embraced it as well.

    Breyer explained that he was positing a test to try and draw out some practical implications of complex social and political science. Breyer, like nearly all the Justices who spoke (Justice Thomas’s renewed streak of oral argument silence is alive and well) was looking for a “manageable” way for courts to evaluate gerrymandering. Here’s Breyer’s suggestion:

    1. Was the map drawn by one party in control of re-districting? If not, full stop. Do not pass go, do not collect $200, do not strike down the map.

    2. Did the map result in “partisan asymmetry”? That is to say, are the results of the district drawing substantially at odds with how the voting turned out? If not, the test is over – challengers lose.

    3. Will there be a persistent partisan asymmetry? Is the line drawing likely to preserve a disproportionate partisan advantage for a long period of time? Again, if not, the districts survive.

    4. Finally, is there any legitimate justification for the district drawing that outweighs all those concerns? If so, then the redistricting stands.

    If some semblance of this test ultimately garners five votes (that’s a pretty big if) on the Supreme Court, the Court may send the case back to Wisconsin with instructions to the lower court to apply the four-part test.

    Lesson 3: The conservative justices don’t like Justice Breyer’s four-part test that much.

    Chief Justice Roberts and Justices Alito and Gorsuch were, to say the least, healthily skeptical. Roberts described the statistical analysis that challengers say proved Wisconsin’s partisan bias as “sociological gobbledygook.” (Even

    Justice Breyer, who thinks the data’s important, is fine calling it “gobbledygook.”)

    Justice Alito is also skeptical that courts should be involved in the business of second-guessing the inherently political choices of legislatures. Social scientists have been looking for a magic formula to discern unfair partisanship for decades and Justice Alito doesn’t think the Efficiency Gap analysis, identified just three years ago, and the partial basis for challenging the Wisconsin gerrymander, is sufficiently tested and examined for it to be the predicate for a

    Constitutional challenge. (Here’s an explanation of the Efficiency Gap which, as attorney Smith pointed out, isn’t as complicated as some would characterize it.) Alito also noted that politicians can rely on speculation and unreliable data like polls. Wisconsin Solicitor General Misha Tseytlin agreed that while politicians are allowed to speculate and guess when it comes to politicking – courts can’t when it comes to deciding Constitutional questions.

    Justice Gorsuch, affable and bright on the bench and not sounding at all like he’s nervous in his new job, asked repeatedly how state legislatures can tell if their partisan considerations cross a Constitutional line. Is the threshold for a violation a 7% Efficiency Gap or some other number? That line of questioning might sound like a request for clarity. It’s probably better understood as skepticism that any Constitutional rule ought to be reduced to a statistical formula.

    The Chief Justice took up this reasoning as well making the point that the United States has never guaranteed parties’ proportional representation in legislative bodies. That’s a hallmark of a parliamentary system, but not ours.

    Lawyer Smith replied that challengers aren’t seeking proportional representation, but symmetrical voting districts – if one party gets a great result with a so-so vote, then the other party ought to also get a great result when they get a so-so vote. For Smith and challengers, the asymmetry of Wisconsin’s system is its cardinal sin. Justice Kagan found this argument “intuitive and attractive.” The Chief Justice didn’t yet seem persuaded.

    The Chief Justice was also concerned, as he often is, with the institutional integrity of the Supreme Court. He worried that nearly every district boundary setting will be appealed to the Supreme Court and that the Court will be asked to decide whether Democrats or Republicans will win or lose. That knee-deep engagement in partisanship will bring the Court into disrepute.

    Roberts worried that ordinary, reasonable Americans won’t think the Court engaged in an analysis of a 7% Efficiency Gap, a “gobbledygook” concept with which they’re unfamiliar, when the Court disapproved or approved a voting district. Rather, they’ll think the Supreme Court started picking winners and losers in elections. (No one today had the poor taste to mention Bush v. Gore, but only because no one had to.) Smith also replied that the courts already are in the mix in districting cases and that the greater fear should be the systemic failure of American democracy.

    Which bring us to….

    Lesson 4: Democracy is precious and it’s at risk.

    Justice Ginsburg asked what would happen to the “precious” right to vote if Wisconsin-like partisan gerrymandering grew broadly acceptable. If elections are foregone conclusions, what’s the point in having them? Justice Sotomayor echoed the same sentiment and worried that a system of voting where parties that lose popular votes still wield power could be harmful to democracy.

    Sotomayor asked Erin Murphy, counsel for the Wisconsin Senate, what value there is to partisan gerrymandering. Murphy answered that it helped voters understand the politics that governed them and helped ensure accountability.

    Sotomayor dismissed these points as, essentially, nonsensical and said she didn’t understand how either of those virtues were furthered by partisan gerrymandering. No other Justice took up that argument for Wisconsin.

    Smith pled, at the end, for the Supreme Court to intervene. Craven politicians can’t be trusted, he said, to fix gerrymandering on their own. Their parochial interests will override their good government instincts. If politicians can solidify their power, they can be trusted to do that almost every time. Smith said only the Supreme Court has the ability and legitimacy to stop the pernicious practice of politicians setting district boundaries that entrench their power and render ordinary voting processes a futile and disillusioning waste of time