By Lisa Soronen
In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional.
While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional.
In 2004, Justice Anthony M. Kennedy—who may be the deciding vote in Whitford—wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional under a First Amendment theory. Gill v. Whitford will be the first case before the Court since Vieth explicitly arguing that partisan gerrymandering can violate the First Amendment.
In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. In the 2015 election, Republican candidates received fewer than 49 percent of the statewide vote and won seats in more than 60 percent of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans.
The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap.
The challengers argue that efficiency gaps over 7 percent violate the Constitution. The efficiency gap in Wisconsin was 13.3 percent in 2012 and 9.6 percent in 2014, according to the proposed standard.
A panel of federal judges in a 2-1 decision ruled in favor of the challengers, finding that the map enacted by the Wisconsin legislature was a result of partisan gerrymandering and prohibited by the First and Fourteenth Amendments. The majority also ordered that new legislative districts be drawn by this November for the 2018 elections, but the Supreme Court today stayed that order until it has a chance to rule on the case.
Veith v. Jubelirer (2004) is the last time the Court examined the issue of partisan gerrymandering. It held that while the case at issue could not be resolved as a partisan gerrymander, such claims could still be considered by courts in the future.
Four justices—then-Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Clarence Thomas, and Antonin Scalia—wrote that courts should never review partisan gerrymandering claims because there is not a manageable process for determining when the role of politics in redistricting is impermissibly influential.
And four other justices—Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer—opined that courts should be able to review partisan-gerrymandering claims.
Justice Anthony Kennedy, the deciding vote, agreed with the first group that the Court should not review the particular case at issue, but agreed with the second group by noting that he might consider a challenge to political gerrymandering in the future if there were “a workable standard” for determining its constitutionality.
Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on judicial matters.