Cracked and Packed No More? A New Breed of Political Gerrymandering Litigation

Patrick Reagan, Associate Member, University of Cincinnati Law Review

Rather than run competitive re-election campaigns, some legislators have opted to have their victory drawn for them. Political gerrymandering decides elections before a single vote is cast and prevents people from having equal opportunities to exercise their constitutional right to freedom of political association. When legislators gerrymander, they either split voters of one party among multiple districts so they won’t constitute a majority, or concentrate them into a few districts where they constitute a supermajority—commonly known as “cracking” and “packing”, respectively.[1] Legislators did not just stand idly by while this became a problem—they created the problem. [2] With Gill v. Whitford, the Supreme Court should reaffirm Davis v. Bandemer and clarify Vieth v. Jubelirer by unequivocally holding that political gerrymandering claims are justiciable.

Davis and Vieth: ABrief Survey of Political Gerrymandering Jurisprudence

             In 1986, Davis v. Bandemer  held that political gerrymandering cases were justiciable.[3] In Davis, the plaintiffs claimed that their votes were diluted by new district lines drawn by the Indiana legislature after the 1980 census, in violation of the Equal Protection Clause of the Fourteenth Amendment.[4]. The plaintiffs pointed to the 1982 election where Democratic candidates for the Indiana House received 51.9% of the popular vote statewide, yet only 43 of the 100 seats to be filled.[5] The most surprising results occurred in Marion County, where Indianapolis is situated, and in Allen County, where Fort Wayne is located. Both counties were divided into multi-member House districts. Democratic candidates drew 46.6% of the vote in these districts in 1982, but only 3 of the 21 Democratic candidates were elected.[6]

            In holding political gerrymandering claims as justiciable, the Court stated that it has “consistently adjudicated equal protection claims in the legislative districting context regarding inequalities in population between districts.”[7] It further held that Davis survived a Baker v. Carr analysis,[8] and referenced the “one person, one vote” principle of Reynolds v. Sims.[9] To further support the court’s holding of justiciability, Justice White surveyed the Court’s racial gerrymandering jurisprudence[10] and wrote specifically that “[i]n the multimember district cases, we have also repeatedly stated that districting that would ‘operate to minimize or cancel out the voting strength of racial or political elements of the voting population’ would raise a constitutional question.”[11] He then pointed to Gaffney v. Cummings [12] which  “upheld against an equal protection political gerrymandering challenge a . . . scheme that was formulated in a bipartisan effort to try to provide political representation . . . proportional to the strength of political parties in the State.”[13] In Justice White’s view, Gaffney was the exact kind of political gerrymandering claim that was at issue in Davis, just without the explicit holding that such claims are justiciable.[14] He also wrote that holding political gerrymandering claims as non-justiciable political questions would transform the Baker v. Carr factors into an “ad hoc litmus test” of the Court’s reactions to whether a claim is desirable and warrants judicial intervention.[15] Thus, the heart of the underlying claim in Davis was that “each political group in a State should have the same chance to elect representatives of its choice as any other political group.”[16]

            The Davis court never agreed on a set standard by which political gerrymandering claims could be evaluated. The standard eventually applied in the lower courts[17]—that a plaintiff in a political gerrymandering case needed to prove “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group”[18]—was only articulated in a separate plurality opinion by Justice White.[19]

The Court reversed course eighteen years later in Vieth v. Jubelirer. In Vieth, a plurality held that political gerrymandering claims were not justiciable.[20] Justice Scalia’s plurality opinion rested on three central conclusions: (1) political gerrymandering has been around for a long time;[21] (2) Article I, § 4 of the Constitution gives Congress the power to alter state legislative maps;[22] and, (3) political gerrymandering claims are a political question.[23] The driving reason behind this plurality opinion, however, was the standard adopted by the lower courts mentioned above. To Justice Scalia, it had a record of “puzzlement and consternation,”[24] and “[e]ighteen years of judicial effort with virtually nothing to show for it justif[ied] [the Court] in revisiting the question whether the standard promised by Bandemer exists.”[25] Because of the lack of a concrete standard, the appellants in Vieth suggested a new standard: that a plaintiff “must ‘show that the mapmakers acted with a predominant intent to achieve partisan advantage,’ which can be shown ‘by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.’”[26] Justice Scalia rejected this standard as too vague and un-manageable.[27] Justice Kennedy joined the judgment of the Court but stated that he “would still reject the plurality’s conclusions as to nonjusticiability.[28] He argued that even though “no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”[29]

Whitford, the First Amendment, and an Opportunity for the Supreme Court

            Twelve years after Vieth, and thirty years after Davis, Whitford v. Gill was decided. The plaintiffs were Democratic voters in Wisconsin who brought the challenge after the 2012 and 2014 elections, in which Republicans received 48.6% and 52% of the statewide popular vote yet won 60 and 63 of 99 legislative seats, respectively, under the map drawn after the 2010 census. The district court agreed that the map infringed on the plaintiff’s First Amendment right to freedom of association and Fourteenth Amendment right to equal protection.[30]

Gill is different from Davis and Vieth in two main ways. First, the underlying claim contains both First Amendment and Equal Protection arguments. Specifically, the plaintiffs argue that by disadvantaging voters based on their political affiliation, Wisconsin violated their First Amendment right to freedom of political association.[31] Equal protection is also a powerful claim, but has a checkered history with political gerrymandering cases, as demonstrated by Davis and Vieth. The First Amendment provides a stronger basis for holding political gerrymandering claims as justiciable, because the Court has held for over four decades that the freedom of political association is a constitutionally-protected right.[32] Part of political association is working to elect candidates sharing one’s beliefs; thus, gerrymandering a map to disfavor certain political groups places a heavy burden on the First Amendment right of political association. That in and of itself makes the First Amendment argument more logical, because legislators are suppressing the ability of a group to express its views and exercise its freedom of association. While there isn’t a Supreme Court case setting a level of scrutiny for burdens on political association, the Seventh Circuit has previously held that strict scrutiny should apply.[33] If, however, the Gill Court goes so far as to hold that political gerrymandering suppresses political speech, strict scrutiny will apply.[34]

The second way Gill is different is in the standard[35] proposed by the plaintiffs for the Court to apply to political gerrymandering claims. The plaintiffs propose using a mathematical formula called the Efficiency Gap (EG). The EG has the potential to give the Court a judicially-manageable standard for political gerrymandering claims. To briefly state, it measures which party is better at converting its votes to legislative seats. If a party’s advantage is outside of an accepted range, that indicates the map might be gerrymandered.[36]

This proposed formula represents a potential solution to the issues faced by both the Davis court and the Vieth court. Baker v. Carr also requires a judicially-manageable standard for a case to avoid being deemed a non-justiciable political question.[37] The EG formula is a smart way to evaluate these claims, because it uses an unbiased, scientific method. Determining whether legislators gerrymandered a map logically requires sensitive inquiries into the factual background of a map’s construction and legislators’ intent. Judges interpret facts differently, and without an objective standard to evaluate these claims, any conclusions that they draw could be problematic.

In his Vieth concurrence, Justice Kennedy kept the door open for a judicially-manageable standard to emerge. If the Court holds that these claims are justiciable, expect a new wave of political gerrymandering claims to appear on dockets across the country—especially if the Court adopts the EG standard. Maps across the country that previously could not be proven to be racially discriminatory, for instance, could be successfully challenged based on the allegation that they are politically discriminatory. The role of legislators in drawing electoral maps will be heavily scrutinized, as the EG provides the clearest way of measuring gerrymandering. The blind eye the Court has turned to gerrymandering due to the lack of a standard by which to evaluate claims has allowed this practice to become a national problem. Legislators have broad authority to make laws, but they should not be permitted to abuse the power with which they are entrusted to gerrymander themselves to victory.[38] That makes the EG an even more attractive formula by which these claims should be evaluated, because math helps courts avoid highly subjective and sensitive factual inquiries that currently render these claims nonjusticiable.

Conclusion

For the Court to hold in Gill v. Whitford that political gerrymandering claims are nonjusticiable—thus removing the possibility of judicial review of political gerrymandering—would be like putting the fox in charge of the henhouse Legislators, armed with sharp consultants, reams of maps, and Excel tricks and gimmicks would have no incentive to draw fair districts if they knew there would be no judicial review for political gerrymandering, just as it is today. No one’s vote should be diluted just because of their political beliefs. reaffirm voters’ First Amendment right of political association by adopting the EG formula in Gill v. Whitford to unequivocally hold that political gerrymandering claims are justiciable.

 

[1] A particularly illustrative example of cracking and packing is illustrated in the following article. Emily Bazalon, The New Front in the Gerrymandering Wars: Democracy vs. Math, The New York Times (Aug. 29, 2017), https://www.nytimes.com/2017/08/29/magazine/the-new-front-in-the-gerrymandering-wars-democracy-vs-math.html?mcubz=3&_r=0.

[2] The Washington Post catalogued some of the most gerrymandered districts in the country. Christopher Ingraham, America’s most gerrymandered congressional districts, The Washington Post (May 15, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.4cb8154dfc90.

[3] Davis v. Bandemer, 478 U.S. 109, 110 (1986) (holding that the Court was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander[ing] cases are to be decided.”).

[4] Id. The map included fifty single-member districts for the Indiana Senate, and 7 triple-member, 9 double-member, and 61 single-member districts for the Indiana House; Id. at 109.

[5] Id.

[6] Id.

[7] Id. at 118.

[8] Id. at 122-123.

[9] 377 U.S. 533 (1964).

[10] Racial gerrymandering has a better-developed body of case law. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986); Cooper v. Harris, 137 S. Ct. 1455 (2017).

[11] Davis, 478 U.S. at 119 (quoting Fortson v. Dorsey, 379 U.S. 433 (1965)).

[12] Gaffney v. Cummings, 412 U.S. 735 (1973). This might be helpful for the appellees in Gill v. Whitford.

[13] Davis, 478 U.S. at 119.

[14] Id. Justice White then went on to cite numerous cases where the Court summarily affirmed or dismissed for want of a substantial federal question cases involving political gerrymandering. Furthermore, because those cases were all summarily decided, that did not preclude the Court’s consideration of Davis. Id. at 121.

[15] Id. at 126.

[16] Id.

[17] Vieth v. Jubelirer, 541 U.S. 267, 268 (2004).

[18] Davis, 478 U.S. at 127 (citing Mobile v. Bolden, 446 U.S. 55, 67-68 (1980)).

[19] Id.

[20] Vieth v. Jubelirer, 541 U.S. 267, 268 (2004).

[21] Id. at 274 (“[p]olitical gerrymanders are not new to the American scene). Justice Scalia then traces their colonial and early modern history.

[22] Id. at 275.

[23] See Id. at 277-279.

[24] Id. at 282.

[25] Id. at 281.

[26] Id. at 284.

[27] Id. at 288. (“[e]ven if the standard were relevant, however, it is not judicially manageable.”).

[28] Id. at 311 (Kennedy, J. concurring).

[29] Id. Justice Scalia called this a “never-say-never approach.” Id. at 303.

[30] Whitford v. Gill, 218 F. Supp. 3d 837, 930 (W.D. Wis. 2016).

[31] Whitford, 218 F. Supp 3d at 883-884 (“[w]e conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is 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.”).

[32] Cousins v. Wigoda, 419 U.S. 477, 487 (1975) (“’[t]he right to associate with the political party of one’s choice is an integral part of . . . basic constitutional freedom.’”) (quoting Krusper v. Pontikes, 414 U.S. 51, 56-57 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) (“this freedom [political association] protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.”).

[33] Wren v. Jones, 635 F.2d 1277, 1285 (7th Cir. 1980). The court relied on Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (976), in which the Court applied a high level of scrutiny when government employees were discharged for their political beliefs.

[34] Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010).

[35] Id. at 854-855. ((1) intent to gerrymander for partisan advantage; (2) partisan effect, which can be proven by showing the efficiency gap (EG)—based on a mathematical formula—between the parties exceeded an acceptable interval (proposed to be 7%); and (3) a duty of the defendants to rebut the presumption of unconstitutionality created by the first two elements by showing that the partisan gerrymander was necessary.)

[36] Id. The formula first requires one to calculate how many votes are cast for a party in excess of the number needed to win (which measures packing); then it requires one to calculate how many votes are cast by a party for a losing candidate (which measures cracking).[36] Each party’s respective number of wasted votes is then divided by the total number of votes cast in the election, and it is the relative comparison of those two numbers that determines the EG.[36] An EG of zero would mean both parties are wasting equal numbers of votes, and an EG in favor of one party or the other means that party wasted votes at a lower rate than the other party.[36] Thus, an EG in favor of Party A means that party was more efficient at translating its votes into legislative seats. Wisconsin’s EG under this new map was 11.69% in favor of Republicans, which contradicted what should happen in elections held under a fairly-drawn map. Id.

[37] Baker, 369 U.S. at 217.

[38] See Robert Draper, The League of Dangerous Mapmakers, The Atlantic (October 2012), https://www.theatlantic.com/magazine/archive/2012/10/the-league-of/309084/. This in-depth analysis shows just how out of control gerrymandering has become.

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