The United States of America is very bad at democracy.
We have a president who lost the popular vote by nearly 3 million ballots, a malapportioned Senate where the majority party represents close to 35 million fewer people than the minority party, and a House of Representatives that — in no small part due to gerrymandering — is firmly in Republican hands.
In order to regain control of the House in 2018, Democrats will need to win the national popular vote by more than 7 points. That’s not impossible, but it’s hardly a free and fair election.
Next Tuesday, the Supreme Court will consider whether to solve at least part of this problem. Gill v. Whitford asks the justices to hold that partisan gerrymanders violate the Constitution — a conclusion the Supreme Court has never really doubted — and, more importantly, to hold that the judiciary should actually do something about them.
Whitford involves one of the most aggressive gerrymanders in the country: the Wisconsin state assembly maps.
As the lower court determined in this case, the GOP-controlled legislature hired a law firm and a political scientist to draw maps that would favor Republican candidates. Eventually, this process produced a map that, according to the political scientist’s calculations, would allow Republicans to win 54 of the state assembly’s seats even if they only won 48 percent of the statewide popular vote. Democrats, meanwhile, would need to receive 54 percent of the vote to win a majority.
If anything, these estimates undershot just how much the map would favor Republicans. As the lower court explained, “in 2012, the Republican Party received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly. In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats.”
The mapmakers achieved this feat through two common tactics, known as “cracking” and “packing.” In regions where Democratic voters clustered together, they were often “packed” into districts that were likely to elect a Democrat with over 80 percent of the vote. Meanwhile, where Democrats lived near large blocs of Republicans, Democratic communities were “cracked” up and placed in multiple districts that were overwhelmingly likely to elect a Republican.
For example, as the plaintiffs in Whitford explain in their brief, “a series of elongated districts (all won by Republican candidates) extract urban Democratic voters from Milwaukee County and combine them with larger numbers of suburban Republicans in Ozaukee, Washington, and Waukesha Counties. The result is a reduction in the number of Democratic districts in the region from four to two.” And practices like these were repeated throughout the state.
The plaintiffs offer two theories for why Wisconsin’s gerrymandered maps violate the Constitution. For one, by favoring one party’s voters over the others, Wisconsin violates the Constitution’s guarantee that no state may deny someone “the equal protection of the laws.” And for another, by effectively treating people who hold one set of beliefs (Democrats) as inferior to people with another set of beliefs (Republicans), Wisconsin engages in “forbidden viewpoint discrimination in contravention of the First Amendment.”
No member of the Supreme Court has concluded that partisan gerrymanders are constitutional (although there’s still time for Neil Gorsuch, who is doing his best to carve out a space as the most conservative judge to sit on the Court since Justice James Clark McReynolds retired in 1941). Indeed, in 2004’s Vieth v. Jubelirer, Justice Anthony Kennedy wrote that partisan gerrymanders may offend “the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.”
If that was all Kennedy said in Vieth, then that case would stand as a bright shining light of hope for the Whitford plaintiffs. In a Court divided between four liberals and four doctrinaire conservatives, Kennedy’s vote is likely to decide whether the Wisconsin assembly maps stay or go.
But taken as a whole, Vieth was a terrible blow for opponents of partisan gerrymanders. Led by Justice Antonin Scalia, four conservative justices concluded that federal courts aren’t allowed to touch partisan gerrymanders at all, regardless of whether or not they are unconstitutional.
Justice Kennedy, meanwhile, took an only-slightly-more-moderate view. Unable to come up with a sure way to sort through many legislative maps and determine which ones are gerrymanders and which ones aren’t, Kennedy threw up his hands in frustration. “The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,” Kennedy wrote in a separate opinion in Vieth.
Nevertheless, he also left the door open to a future challenge. “If workable standards do emerge to measure these burdens,” he concluded. “Courts should be prepared to order relief.”
Despite Kennedy’s refusal to slam shut the door to partisan gerrymandering suits forever, many states treated Vieth as blanket shield of immunity over partisan gerrymanders. Indeed, in suits alleging illegal racial gerrymanders (which the Supreme Court does permit to move forward), states often defend themselves by saying that their maps were drawn for partisan and not racial reasons. The state of Texas, for example, defended its maps in a racial gerrymandering suit by arguing that its legislature’s “redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.”
The play for Justice Kennedy
What makes Whitford such an interesting case (and part of what convinced the lower court to strike down Wisconsin’s gerrymander) is that the Whitford plaintiffs take Kennedy’s call for a “workable standard” seriously. One of the centerpieces of their argument is a mathematical formula they call the “efficiency gap,” which provides an objective measure courts can use to separate out maps that are likely to be partisan gerrymanders from those that aren’t.
The core insight behind this efficiency gap is that gerrymanders work by forcing one party to “waste” more votes than the other. In Wisconsin, thousands of Democratic voters packed into solid Democratic districts wind up wasting their vote on a candidate that is going to win anyway. Other voters, cracked off into solid Republican districts, waste their vote on a candidate who has little or no chance of prevailing.
To calculate the efficiency gap, a judge counts up how many votes were either cast “’for a candidate who lost the election’ (suggesting that the voter was targeted by cracking), or if they cast a ballot ‘for the winning candidate, but in excess of what the candidate needed to win’ (suggesting that the voter was packed).” In a fair map, there will be roughly equal numbers of wasted votes cast by members of either party. In a gerrymandered map, voters from one party will cast significantly more wasted votes than voters from the other party.
Plaintiffs don’t rely entirely on this mathematical formula. Under the plaintiffs’ theory, a state could still potentially rebut allegations that a map with a high efficiency gap is a partisan gerrymander. But the formula gives judges a place to start, allowing them to filter out challenges to maps that are very unlikely to be gerrymanders.
Will that be enough to get Justice Kennedy? That remains to be seen. But even if Kennedy is not prepared to announce a single, overarching test that courts can use to evaluate every single partisan gerrymandering challenge, he could at least determine that the status quo is untenable.
Cases like Vieth, which leave open the possibility that a gerrymander will be struck down but offer no guidance on when a court should do so, have produced a situation where states believe they can get away with anything. There are, indeed, hard cases where it won’t immediately be clear if a map is an unconstitutional gerrymander or not. But there are also easy cases.
When a map allows the party that received less than 49 percent of the vote to win more than 60 percent of the seats, that’s a pretty clear sign that something has gone horribly wrong.
And when Texas openly admits in a document it filed in a court of law that its “redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats,” it’s not hard to find a “workable standard” that will determine that, yup, Texas’ map is an unconstitutional gerrymander.