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Faceoff Starts in Wisconsin Partisan Gerrymandering Case

Today, partisan gerrymandering takes center stage in Wisconsin as a four-day trial begins in Whitford v. Nichol.

  • Eric Petry
May 24, 2016

Partisan gerry­man­der­ing takes center stage in Wiscon­sin as a four-day trial begins today in Whit­ford v. Nichol. The plaintiffs, 12 Wiscon­sin resid­ents who histor­ic­ally have voted Demo­cratic, argue that the legis­lat­ive district plan drawn after the 2010 Census is uncon­sti­tu­tional because it discrim­in­ates against Demo­cratic candid­ates and voters on the basis of their polit­ical beliefs.

Partisan gerry­man­der­ing has consist­ently tripped up courts in the past, includ­ing the U.S. Supreme Court. In Davis v. Bandemer in 1986, the Supreme Court recog­nized the issue as one within the power of courts to decide. But in the three decades since, they have struggled migh­tily to find a manage­able stand­ard to determ­ine when a district plan crosses the line between permiss­ible redis­trict­ing and uncon­sti­tu­tional gerry­man­der­ing.

When the Supreme Court last took up the issue, in Vieth v. Jube­lirer in 2004 and LULAC v. Perry in 2006, it split badly: some justices declared partisan gerry­man­der­ing off limits for courts to decide, others proposed vari­ous tests to determ­ine when gerry­man­der­ing had occurred, and one (Justice Anthony Kennedy) sat in the middle. As a result, the issue was left unsettled and remained largely dormant until now.

Not surpris­ingly, many in the reform community are watch­ing the Whit­ford trial closely. The case is the first time in nearly three decades that partisan gerry­man­der­ing claims have survived a motion to dismiss in a trial court, and it will be a crit­ical test for a proposed stand­ard for eval­u­at­ing partisan gerry­man­der­ing claims called the effi­ciency gap.

At the trial, the three-judge panel will face two major issues. The first is a ques­tion of intent — were Wiscon­sin’s state House districts inten­tion­ally drawn to discrim­in­ate against Demo­crats? If the court finds there was discrim­in­at­ory partisan intent, the judges will then need to determ­ine whether it resul­ted in a discrim­in­at­ory effect that crosses into uncon­sti­tu­tion­al­ity.

Prov­ing Intent

When it comes to intent, the plaintiffs say evid­ence is abund­ant. They start with the fact that Repub­lican archi­tects of the redis­trict­ing plan were obsessed with secrecy, meet­ing in a map room at a law firm in Madison, the state’s capital, that could only be accessed by a hand­ful of Repub­lican Party lead­ers and oper­at­ives. Demo­cratic lawmakers, in fact, were entirely excluded from the process. While nearly every Repub­lican legis­lator had a chance to review and offer comments about his or her district, not a single Demo­crat was consul­ted.

The plaintiffs also point out that the Repub­lican mapdraw­ers were acutely tuned into the partisan impacts that map changes could have. They analyzed the maps they draf­ted to see how Repub­lican candid­ates would fare under them, and worked with painstak­ing detail to create a map that maxim­ized the number of Repub­lican-held districts. In fact, at one meet­ing of Repub­lican legis­lat­ors, a member of the Senate major­ity lead­er’s staff said, “The maps we pass will determ­ine who’s here 10 years from now,” before adding, “We have an oppor­tun­ity and an oblig­a­tion to draw these maps that Repub­lic­ans haven’t had in decades.”

Creat­ing the ulti­mate Repub­lican map also required upend­ing a long­stand­ing rule that had governed Wiscon­sin redis­trict­ing for a century. Typic­ally, muni­cip­al­it­ies drew ward bound­ar­ies follow­ing the Census, and then congres­sional and state legis­lat­ive districts were drawn around the wards. The Repub­lican mapdraw­ers, however, reversed this rela­tion­ship, forcing muni­cip­al­it­ies to shape wards around the already-redrawn congres­sional and legis­lat­ive districts.

Once the Repub­lic­ans finished draw­ing the redis­trict­ing plan, they pushed it through the legis­lature in just eight days, leav­ing Demo­crats little time for debate. The plaintiffs cite the Repub­lic­ans’ aggress­ive “legis­lat­ive agenda” as yet further evid­ence that they inten­ded to discrim­in­ate against Demo­crats.

The three defend­ants — all offi­cials of the Wiscon­sin Govern­ment Account­ab­il­ity Board — don’t dispute the factual claims. Instead, they argue that “it is well estab­lished that partisan intent in district­ing is lawful” and that the Wiscon­sin mapdraw­ers acted within the bounds of normal partisan redis­trict­ing. Accord­ing to the defend­ants, it is there­fore “not illegal or even shock­ing” that the districts were drawn as they were.

Meas­ur­ing the Impact of Gerry­man­der­ing: The Effi­ciency Gap

The plaintiffs also say the evid­ence of the impact of gerry­man­der­ing is clear. Rely­ing on a stat­ist­ical meas­ure­ment known as the effi­ciency gap, they say the maps were so effect­ively drawn it would be hard for Demo­crats ever to win a major­ity. As the chart below shows, the effi­ciency gap of the final plan chosen by the Repub­lican mapdraw­ers was the highest of all the draft plans, and was much higher than the effi­ciency gap than the 2000 map.


The effi­ciency gap, which was developed by Nich­olas Stephan­o­poulos of the Univer­sity of Chicago Law School and Eric McGhee of the Public Policy Insti­tute of Cali­for­nia, essen­tially meas­ures the number of votes each party wastes in an elec­tion. A wasted vote is one that is either cast for a losing candid­ate or for a winning candid­ate in excess of what was needed to win the elec­tion (i.e. above 50 percent). By compar­ing each party’s wasted votes to the total votes cast, the effi­ciency gap shows whether either party enjoyed a system­atic advant­age over the other. In other words, the effi­ciency gap captures in one simple number “all of the pack­ing and crack­ing decisions that go into a district plan” to determ­ine the sever­ity and strength of a gerry­mander.

Apply­ing the effi­ciency gap in Whit­ford, the plaintiffs argue that Wiscon­sin had “pro-Repub­lican effi­ciency gaps of 13 percent in 2012 and 10 percent in 2014 — mean­ing that Repub­lic­ans won 13 percent and 10 percent more seats, respect­ively, than they would have under a neut­ral map.”

Further­more, they claim the state has no justi­fic­a­tion for such high effi­ciency gaps. Citing research from Univer­sity of Michigan polit­ical scient­ist Jowei Chen, the plaintiffs argue the state could have achieved all of its legit­im­ate redis­trict­ing goals while draw­ing a map with a much lower effi­ciency gap. Indeed, to prove that the pro-Repub­lican gerry­mander was far from inev­it­able, a Demo­cratic legis­lator submit­ted an altern­at­ive map that performed simil­arly to the Repub­lic­an’s plan in terms of tradi­tional redis­trict­ing criteria, but had a signi­fic­ant pro-Demo­cratic effi­ciency gap.

Not surpris­ingly, Wiscon­sin rejects the use of the effi­ciency gap as unfoun­ded in preced­ent. It claims that the test, in fact, is actu­ally “more radical” than other stand­ards the courts have rejec­ted before. But like those stand­ards, they argue, the effi­ciency gap suffers from the same funda­mental defect — it is “based on a prin­ciple … that is not found in the Consti­tu­tion.”

A Key Test Before 2020

Partisan gerry­man­der­ing has long befuddled courts and frus­trated Amer­ican voters. It is a regret­tably time-honored tradi­tion in Amer­ican polit­ics that has been used by both major parties.

But with the Wiscon­sin case having gotten farther than any partisan gerry­man­der­ing chal­lenge in more than three decades, it looks possible that courts could be finally ready to step into the polit­ical thicket — and set up a major show­down on the issue at the Supreme Court ahead of the next round of redis­trict­ing after the 2020 Census. So for this week, all eyes on Wiscon­sin.