The Supreme Court first recognized the possibility of a partisan-gerrymandering claim more than three decades ago in Davis v. Bandemer. But, since then, courts have struggled to develop a workable standard for deciding when a map becomes unconstitutional. As a result, since Bandemer, courts have not invalidated a single redistricting plan on the basis of excessive partisanship.
That changed Monday afternoon when a three-judge panel in the U.S. District Court for the Western District of Wisconsin issued a ruling in Whitford v. Gill, holding that Wisconsin’s 2011 state assembly redistricting plan violated both the First and the Fourteenth Amendments. In a 2-1 opinion, the panel described the gerrymander as “an aggressive [one]” that guaranteed a Republican majority in the state assembly “in any likely electoral scenario.” The panel’s extensive 117-page opinion marks a break from the federal judiciary’s long-standing reluctance to intervene in partisan-gerrymandering disputes, and could give the U.S. Supreme Court its first opportunity to weigh-in on the merits of a partisan-gerrymandering claim since it badly deadlocked on the question of a “manageable standard” more than a decade ago.
The target of the Whitford plaintiffs’ suit was Wisconsin’s Act 43, a redistricting plan passed in 2011 after Republicans took control of both houses of the Wisconsin legislature and the governorship. As the panel found, Republican legislators charged aides and consultants with drafting a series of preliminary maps using “a composite partisan score that accurately reflected the political make-up of population units” throughout the state. The map drawers then compared their preliminary maps to determine which offered the greatest partisan advantages and sent them off to another consultant to generate “S-curves,” essentially graphs that would “show how each map would [allocate seats between the parties] within an array of electoral outcomes.”
This process resulted in a final map that was set to give Republicans “a 54 seat majority while garnering only 48% of the statewide vote.” (Meanwhile, Wisconsin Democrats “would need 54% of the statewide vote to capture a majority.”) The map performed even better for Republicans than they envisioned. In 2012, they “won 60 of the 99 seats in the Wisconsin Assembly” despite winning only 48.6% of the two-party state-wide vote; in 2014, they won 63 seats with only 52% of the state-wide vote. In the face of these results, the plaintiffs — Democratic voters in Wisconsin — alleged that the 2011 map diluted their vote in violation of the Fourteenth Amendment and “unreasonably burdened” their rights of association and free speech under the First Amendment.
The panel ruled for the plaintiffs after critically reviewing a wealth of Supreme Court case law. As the panel observed, the Supreme Court’s most recent partisan-gerrymandering precedents — Vieth v. Jubelirer and LULAC v. Perry — did not provide “a single, judicially manageable or discernible test for determining when the line between ‘acceptable’ and ‘excessive’ [injections of politics into the redistricting process] has been crossed.” So, to guide its inquiry, the panel drew on other First Amendment and Fourteenth Amendment precedents to construct a three-part test. According to this test, a redistricting scheme is unconstitutional if it “(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.”
On intent, the panel’s opinion acknowledged that courts have struggled to tell when politics have gone too far in shaping maps. Judges got it wrong, the panel suggested, when they focused on “raw seat tallies.” Instead, the key was to focus on the object of the gerrymander. “Whatever gray may span the area between acceptable and excessive, an intent to entrench a political party in power signals an excessive injection of politics into the redistricting process that impinges on the representational rights of those associated with the party out of power.” The plaintiffs satisfied the intent prong because they demonstrated that “the intent to entrench the Republican Party was ‘a motivating factor in the decision’” to pass Act 43. As the panel reasoned, the various alternative maps the legislature generated, combined with the statistical comparisons they undertook, showed “that a focal point of the drafters’ efforts was a map that would solidify Republican control.”
There was no question, the court said, that “Act 43 also achieved the intended effect.” The panel here pointed to three major classes of evidence: the results of actual elections run with the map, the “swing analyses” generated by the defendants’ consultants, and the plaintiffs’ calculations of the “efficiency gaps” associated with the map. The first two classes of evidence combined to show that “even when Republicans are an electoral majority, their legislative power remain[ed] secure.” The third—the efficiency gap—“corroborat[ed]” that conclusion.
The panel closed its analysis by explaining that the map’s “partisan effect [could not] be justified by the legitimate state concerns and neutral factors that traditionally bear on the reapportionment process.” Although Wisconsin’s Democratic voters were more closely packed as a geographic matter, this fact didn’t justify the map’s inequalities. According to the panel, it was obvious that Act 43 provided Republicans with advantages beyond what political geography alone could provide and that partisan advantage was driving the legislature’s mapping decisions.
Although the panel ruled that the redistricting plan was unconstitutional, it held off ruling on the remedy, giving the parties until January 5 to wrap-up briefing on that issue. In the interim, the state will likely evaluate its options moving forward. Should the state elect to challenge the panel’s ruling, its appeal will go directly to the Supreme Court. How the Court will ultimately rule on any appeal is an open question, particularly given changes to the Court since it last took up partisan gerrymandering in the mid-2000s. Nonetheless, the Whitford plaintiffs will enjoy one benefit other recent partisan-gerrymandering plaintiffs have not: a thorough panel opinion in their favor that will frame the appeal for the Justices.
With other major partisan gerrymandering challenges pending in Maryland and North Carolina, all eyes are now on Whitford.