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Analysis

What the Briefs Say About Extreme Gerrymandering

We read 100's of pages of amicus briefs in the Whitford case so you don’t have to. Learn more about the key themes in the amicus briefs.

September 6, 2017

When the Supreme Court sits for oral argu­ment on Octo­ber 3 in Gill v. Whit­ford, the Justices will have the bene­fit of dozens of amicus (or friend-of-the-court) briefs that have been filed in support of the voters who chal­lenged Wiscon­sin’s state assembly map.

The subjects covered by the briefs run the gamut, from describ­ing how gerry­man­der­ing is profoundly at odds with the Framers’ vision for our demo­cracy to warn­ing the Court about how cutting-edge tech­no­logy and “Big Data” will make gerry­man­der­ing much worse in the future if the Court does­n’t step in. The filers of the briefs are equally diverse. Their ranks include prom­in­ent Repub­lic­ans and Demo­crats, civil rights groups, citizens in the states affected by extreme gerry­man­der­ing, and lead­ing legal schol­ars, histor­i­ans, and polit­ical scient­ists.

Here are high­lights from some of the key briefs:

Both Repub­lic­ans and Demo­crats Say Fixing Extreme Gerry­man­der­ing Isn’t about Demo­crats vs. Repub­lic­ans

The briefs force­fully refute the famil­iar argu­ment that partisan gerry­man­der­ing is mainly about whether Demo­crats or Repub­lic­ans come out on top elect­or­ally. For example, a brief filed by prom­in­ent Repub­lic­ans Arnold Schwar­zeneg­ger, John Kasich, Bob Dole, and Dick Lugar, among others, asserts that “[i]f th[e Supreme] Court does not stop partisan gerry­manders, partisan politi­cians will be emboldened to enact ever more egre­gious gerry­manders . . . That result would be devast­at­ing for our demo­cracy.” Mean­while, Senator John McCain—in a brief filed with Senator White­house­—warned that “[p]artisan gerry­man­der­ing has become a tool for power­ful interests to distort the demo­cratic process.” A bipar­tisan group of 65 current and former state lawmakers, and a bipar­tisan coali­tion of current and former members of Congress have also filed briefs in support of the plaintiffs.

What’s more, experts who have helped Repub­lic­ans and Demo­crats draw maps in the past have come together to say that “the courts can, and should, play a role in poli­cing improper partisan gerry­manders.”

The NAACP Legal Defense and Educa­tion Fund and other civil rights groups also echo that gerry­man­der­ing isn’t just a polit­ical fight between the parties, power­fully remind­ing the Court that “[b]oth Demo­cratic and Repub­lican legis­latures have used the power of the state to enact extreme partisan gerry­manders,” many “at least in part at the expense of minor­ity voting rights.”

As these briefs make clear, when courts place limits on partisan gerry­man­der­ing, it is voters who win, not polit­ical parties.

The Prob­lem of Extreme Gerry­man­der­ing is a Discrete and Manage­able One

The briefs also provide import­ant perspect­ive on the chal­lenge facing the Court by making clear that Whit­ford isn’t a refer­en­dum on all things that might be objec­tion­able about redis­trict­ing and our legis­latures.

Instead, as briefs such as the Bren­nan Center’s remind the Court, it’s about a relat­ively rare, but undoubtedly very seri­ous, prob­lem: “extreme partisan gerry­man­der­ing,” when one party “inten­tional[ly] manip­u­lat[es] … the redis­trict­ing process to give itself a large major­ity in a legis­lature and to insu­late that major­ity from future changes in voter pref­er­ences.” In an extreme partisan gerry­mander, one party uses the redis­trict­ing process to entrench itself in power, engin­eer­ing maps to give itself a major­ity—or even, in some cases, a super­ma­jor­ity—regard­less of how voters actu­ally vote.

This entrench­ment theme is echoed by many of the briefs, from Repub­lican statewide elec­ted offi­cials to the ACLU to lead­ing histor­i­ans. And, crucially, this prob­lem does­n’t occur every­where. By the Bren­nan Center’s estim­ates, it has reared its head in less than ten congres­sional maps this cycle, and perhaps a dozen or so state legis­lat­ive maps in the same time period.

Extreme Partisan Gerry­man­der­ing Is a Real and Urgent Prob­lem for Our Demo­cracy – and about to Get Worse

But if extreme gerry­man­der­ing is rare, the briefs make clear that its effects are severe where it does occur and likely only  to get worse if the courts don’t step in now to place some limits on how legis­lat­ors can use partis­an­ship to draw districts.       

The briefs outline for the Court a stag­ger­ing array of harms that extreme gerry­man­der­ing causes. A bipar­tisan group of 65 current and former state legis­lat­ors notes that it under­cuts incent­ives for legis­lat­ors to collab­or­ate and form bipar­tisan part­ner­ships, breed­ing “distrust, dysfunc­tion, and hostil­ity” that spills over into legis­lat­ive sessions.

The briefs also talk about the havoc extreme gerry­man­der­ing wreaks on the links between voters and their legis­lat­ors. Civic organ­iz­a­tions, demo­cracy groups, and even elec­ted offi­cials them­selves all emphas­ize that entrench­ment under­cuts legis­lat­ors’ account­ab­il­ity to voters and the repres­ent­at­ive­ness of legis­latures. When maps are so care­fully designed that they allow parties to main­tain their hold on legis­lat­ive power even with a minor­ity of the vote, there’s no normal polit­ical solu­tion to the prob­lem.

Moreover­—as lead­ing consti­tu­tional law schol­ars, the ACLU, and others explain—ex­treme partisan gerry­manders over­ride indi­vidual voters’ First Amend­ment rights of expres­sion and asso­ci­ation. As the consti­tu­tional law schol­ars demon­strate, partisan gerry­man­der­ing directly under­cuts voters’ abil­ity to band together in polit­ical parties to advance their common interests through the ballot.

And a brief by nearly twenty prom­in­ent polit­ical scient­ists warns that the recent explo­sion of voter data and advances in tech­no­logy threatens to make “gerry­man­der­ing tech­niques that were only theor­et­ical in the 2010 redis­trict­ing cycle … common­place in the 2020 redis­trict­ing cycle and beyond.” Consequently, without some judge-made rules against partisan gerry­man­der­ing, “voters face a future of gerry­manders that are even more biased and more durable … than ever before.”

Partisan Gerry­man­der­ing Is Not a Time-Honored Amer­ican Tradi­tion

The briefs also offered import­ant histor­ical context for under­stand­ing gerry­man­der­ing. Gerry­man­der­ers have long tried to justify their prac­tices by arguing that politi­cians have been gerry­man­der­ing districts from very early on in the nation’s history. Wiscon­sin has offered the same defense in this case.

But, fifteen histor­i­ans from lead­ing univer­sit­ies told the Court that “any claim that partisan gerry­man­der­ing has been regarded as an accept­able char­ac­ter­istic of our demo­cratic system is demon­strably ahis­tor­ical.” Indeed, “consist­ently since its incep­tion, partisan gerry­man­der­ing has been force­fully denounced as uncon­sti­tu­tional, as a form of corrup­tion that threatens Amer­ican demo­cracy, and as an infringe­ment on voters’ rights.”

Extreme Partisan Gerry­man­der­ing Is Easy to Identify

Last but not least, if extreme gerry­man­der­ing is dire, the briefs assure the Court that judges have plenty of tools at their disposal to identify the worst maps.  

A group of nearly twenty prom­in­ent social scient­ists explains that signi­fic­ant advances in the social sciences have produced a wealth of stat­ist­ical and tech­no­lo­gical tools that make identi­fy­ing gerry­manders easier and more reli­able than ever before.

Many of these tools can help courts tell if maps have “partisan symmetry,” or, in other words, whether voters from each party have an equal oppor­tun­ity to trans­late their votes into seats. As Yale Law School Dean Heather Gerken and a team of lead­ing social scient­ists under­scored for the Court, “Partisan symmetry is highly intu­it­ive, deeply rooted in history, and accep­ted by virtu­ally all social scient­ists.”

Although several differ­ent metrics for meas­ur­ing partisan symmetry exist—in­clud­ing the “effi­ciency gap” meas­ure that the plaintiffs used in Whit­ford to assess Wiscon­sin’s map—Gerken & Co. stress that “[u]nder any partisan-symmetry test, Wiscon­sin’s legis­lat­ive districts are grossly asym­met­rical.” This is import­ant: Because Wiscon­sin’s map is wildly unbal­anced by any meas­ure, the Court does­n’t have to rely on the effi­ciency gap, or any other partic­u­lar metric, to rule for the plaintiffs and can rest assured that the social science can help judges reli­ably identify the worst maps.

But it does­n’t stop with partisan symmetry. Courts can also use cutting-edge simu­lated mapping applic­a­tions to smoke out the likely causes of partisan asym­metry. As a brief by polit­ical geography schol­ars who special­ize in mapping applic­a­tions explains, these applic­a­tions illus­trate that the asym­metry in Wiscon­sin’s elect­oral map is not the result of so-called “clus­ter­ing”—the belief that Demo­crats huddle together in cities while Repub­lic­ans spread out across the coun­tryside.

And courts have more than top-notch social science at their disposal. The Bren­nan Center’s brief explains that “two straight­for­ward, object­ive criteria … are highly correl­ated with” extreme gerry­manders: “single-party control of the redis­trict­ing process” and a “recent history of compet­it­ive statewide elec­tions.” When these two factors are present, legis­lat­ors have both “the motive and oppor­tun­ity” to create an extreme gerry­mander. These two factors alone would narrow down the range of poten­tially uncon­sti­tu­tional maps to just a hand­ful this cycle.