Of Judges and Gerrymanders
Partisan gerrymanders predate the republic, though improved technology has made it easier for politicians to pick their voters. This makes elections less competitive and politics perhaps more polarized, but the question before the Supreme Court on Tuesday is whether judges should become the deciders in what Felix Frankfurter called “this political thicket.”
At issue in Whitford v. Gill is whether Republicans who controlled the Wisconsin legislature after 2010 drafted an Assembly map that abridged equal protection and freedom of association of Democrats. The Supreme Court has consistently held that redistricting is intrinsically political, but its 1986 Davis v. Bandemer precedent said judges could nonetheless review partisan gerrymanders for potential constitutional violations. The unsolvable problem is determining a standard for judging political bias.
In Vieth v. Jubelirer (2004), the Court’s four liberals and four conservatives split over whether to overturn Bandemer. Writing for the conservative plurality, Antonin Scalia argued that since “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged,” courts shouldn’t gratuitously insert themselves into the politics of redistricting.
Justice Anthony Kennedy, the swing vote as ever, concurred that there is nothing inherently invidious about a legislature considering partisanship. “Race is an impermissible classification,” he noted. “Politics is quite a different matter.” But he was open to judicial relief “if some limited and precise rationale” could be found to set district lines.
He also teed up Gill by opining that the First Amendment may be more relevant than the equal protection clause of the Fourteenth since partisan redistricting may punish “citizens because of their participation in the electoral process, their voting history, their association with a political party.”
The plaintiffs have taken that bait and claim the Wisconsin gerrymander has resulted in Republicans winning a disproportionate number of seats relative to their statewide vote count and thus abridges Democrats’ right to association. Yet the state has passed no law interfering with Democrats’ ability to vote, organize, or otherwise participate in politics.
Plaintiffs instead complain that the gerrymander prevents Democrats from translating their votes into representation. But as Justice Kennedy noted in League of United Latin American Citizens v. Perry the Constitution doesn’t require proportional representation, which would mean representation according to voter population.
In fact, politics wasn’t the Wisconsin legislature’s only consideration. Before analyzing partisan leanings, the legislature ensured that districts were contiguous and as compact as possible. They also strove to respect city and county boundaries.
The big problem for Democrats in Wisconsin and other states is they are increasingly clustered in urban areas while Republicans are more spread out. This is a major reason that elections have become less competitive and Democrats have lost representation in Congress and statehouses. In 2016 only 303 of the country’s 3,113 counties were decided by a single-digit percentage-point margin compared to 1,096 in 1992. During those 24 years, the number of counties decided by more than a 50-point margin rose to 1,196 from 92.
Plaintiffs are trying to entice Justice Kennedy with an ostensibly precise standard to determine unconstitutional partisan gerrymanders. They have proposed an “efficiency gap” formula to count what they call “wasted” votes—that is, those that don’t contribute to a candidate victory. But this standard is merely a proxy for proportionality.
How big a gap is too big and unconstitutional? Plaintiffs suggest 7%, but this is arbitrary. Under Wisconsin’s court-drawn maps in effect from 2002 to 2010, the efficiency gap favoring Republicans ranged from 4% to 12%. Even with this gap, Democrats won a majority of seats in the state Assembly in 2008.
The efficiency gap reflects partisan geographic concentration far more than political bias. Since 1972, at least 36 states have had efficiency gaps greater than 7% during an election. In 2012 and 2014, the maps in Kansas (drawn by a federal court) and Missouri (by a bipartisan commission) resulted in gaps greater than 10% favoring Republicans. Partisanship isn’t stable on an individual or district level, so efficiency gaps will vary by election.
The larger issue is whether the Justices want to inject the judiciary into partisan disputes even more than it already is. The Supreme Court has had enough trouble judging gerrymanders that are challenged under the Voting Rights Act, which requires states to consider race when drawing districts. If judges make themselves arbiters of every political consideration in redistricting, they will usurp the powers of other branches and make themselves bigger political targets.
This is dangerous for judicial credibility and political consent, and in any case there are non-judicial remedies. The Constitution lets Congress “make or alter” districts, and voters in a dozen or so states have ceded redistricting authority to independent commissions. Political controversies are best resolved by the political process.
Appeared in the October 3, 2017, print edition.