In a potentially transformative decision that could hobble partisan gerrymandering and restore a degree of fairness to many legislative races, a divided federal court held on Monday that Wisconsin’s state assembly maps are unconstitutional.
The court reached this decision despite a web of Supreme Court decisions that have discouraged, if not exactly foreclosed, lower courts from striking down gerrymandered maps — a testament both to the egregiousness of Wisconsin’s maps and the creativity of the lawyers who challenged them.
Whether Monday’s decision in Whitford v. Gill will amount to more than some excited headlines followed by a sinking feeling of powerlessness, however, is likely to depend entirely on how Justice Anthony Kennedy views this case when it almost certainly reaches the Supreme Court.
Whitford asked the court to find its way through a winding path left by Kennedy in his concurring opinion in Vieth v. Jubelirer. Though Kennedy’s four most conservative colleagues called upon courts to simply give up on trying to solve partisan gerrymanders in Vieth, Kennedy kept a single light of hope burning for Americans who want to choose their own lawmakers, rather than having lawmakers choose their own voters.
Though Kennedy fretted about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” in his Vieth opinion, he added that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
According to an opinion by Judge Kenneth Ripple, a Reagan appointee to a federal appeals court, the plaintiffs met this task in Whitford. In order to do so, they had to clear three hurdles:
We 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.
With regard to the first of these burdens, the court detailed the great lengths state mapmakers went to in order to ensure that Republicans performed very well under the state’s assembly maps. The mapmakers developed a mathematical model for evaluating voter partisan preferences in the aggregate. They drew up spreadsheets identifying the likely winner in various proposed districts. They gave potential maps labels like “assertive” or “aggressive,” which indicated how likely that map was to elect Republicans.
Under their “final map,” they determined that “Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.” One of the mapmakers “also made a presentation to the Republican caucus. His notes for that meeting state: ‘The maps we pass will determine who’s here 10 years from now,’ and ‘[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.’”
As Judge Ripple’s opinion explains, the map worked even better than its drafters had hoped. “It secured for Republicans a lasting Assembly majority. It did so by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.”
Even if Democrats won 54 percent of the votes, they still would only win 45 seats — giving Republicans the other 54.
In 2012, when Republicans earned just 48.6 percent of the vote, they won 60 seats in the 99 seat Assembly. Two years later, when the increased their share of the vote to 52 percent, they won 63 of the 99 seats.
Indeed, one expert testified that, even if Democrats won 54 percent of the votes, they still would only win 45 seats — giving Republicans the other 54.
The fact that the map was drawn with the intent of rigging the assembly for Republicans, and the fact that it achieved this goal in spades — combined with the fact the mapmakers rejected other proposed maps that “would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage” — renders the maps unconstitutional.
In reaching this conclusion, the court also relied, at least in part, on a metric proposed by the plaintiffs known as the “efficiency gap.” The efficiency gap, which ThinkProgress explained in detail here, is a mathematical formula which measures how many votes were “wasted” because voters were either “packed” into districts that overwhelmingly favored Democrats or “cracked”into districts where a Republican was already fairly certain to win.
If this efficiency gap wins the favor of five Supreme Court justices, it could provide a guide for judges throughout the country to measure maps for unconstitutional partisanship and strike them down if needed.
In the meantime, however, it remains uncertain whether even the Wisconsin maps will ultimately be struck. The court concludes its decision by calling on the parties to submit additional briefing regarding the appropriate remedy for these unconstitutional maps. And, of course, the decision is still very likely to be reviewed by the Supreme Court.
It’s also worth noting that the Whitford panel felt comfortable reaching Monday’s decision because “we have the actual election results to confirm the reliability” of models predicting that the state’s maps would overwhelmingly favor Republicans. That suggests that, even in the best case scenario, gerrymandering lawmakers will get at least one free election before their maps can be challenged.
Nevertheless, the fact remains that, yesterday, the path for voters concerned that legislative races were being rigged by gerrymandering looked pretty grim. And now, at least, there is hope.