During the current term, the U.S. Supreme Court heard oral arguments in two redistricting cases involving claims of partisan gerrymandering. Now, commentators, observers and map-drawers across the country are waiting to see if the Supreme Court will rein in the practice and its damaging effects on our democratic system.
Every 10 years, states are required to redraw both their congressional and state legislative districts to ensure they remain representative of the state’s overall population. In many instances, map-drawers use redistricting as a tool to stack the deck in favor of one political party. This manipulation of the system is called gerrymandering, and many commentators and academics believe it has contributed to hyperpartisanship and political gridlock in state and federal politics.
Since the Supreme Court decided the Davis v. Bandemer case in 1986, courts have recognized partisan gerrymandering as an issue within their jurisdiction to decide. But during this time, courts have been unable to agree on a manageable standard to determine when a district plan crosses the line between permissible line-drawing and unconstitutional gerrymandering.
Writing for the Supreme Court in Bandemer, Justice Byron White held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause” of the 14th Amendment. But Justice White held that the appellants, the Indiana Democratic Party, had failed to show the plan in question was “sufficiently adverse” to constitute a constitutional violation.
The high court took up the issue again in the 2004 case of Vieth v. Jubelirer. Vieth involved a challenge to the post-2000 redistricting of Pennsylvania’s congressional districts. The Supreme Court split badly in Vieth. In Justice Antonin Scalia’s plurality opinion, the four conservative justices held that partisan gerrymandering was a political question that was off limits to the courts because there are no “judicially discernible and manageable standards” for gauging when map-drawers went too far.
Four other justices disagreed. They said it was proper for courts to intervene in partisan gerrymandering cases and proposed various tests for determining when a partisan gerrymander had occurred. Falling between the two camps, Justice Anthony Kennedy affirmed that partisan gerrymandering is an issue courts can decide, but said none of the proposed standards would suffice. Justice Kennedy left open the possibility of a manageable constitutional test down the line. He then theorized that perhaps a partisan-gerrymandering claim was better premised on a First Amendment claim. Since Vieth, opponents of partisan gerrymanders have searched for a manageable standard to persuade Justice Kennedy.
Fast forward to the current term. Last October, the Supreme Court heard oral arguments in the case of Gill v. Whitford. Gill is, without question, the biggest partisan-gerrymandering case since Vieth — and possibly the most important case the Supreme Court will decide this term. In Gill, the plaintiffs are relying on a new constitutional test, the efficiency gap, to strike down Wisconsin’s post-2010 state legislative redistricting plan.
The efficiency gap is a standard for measuring partisan gerrymanders that counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats. Any vote cast for a losing candidate is considered a wasted vote, as are any votes for a winning candidate in excess of the number needed to win.
Relying on the efficiency gap, in November 2016, a panel of three federal judges declared that the state assembly plan adopted by Wisconsin’s Republican-controlled legislature was an unconstitutional partisan gerrymander that violated the Equal Protection Clause. The U.S. Supreme Court granted cert in the case and heard oral arguments on Oct. 3, 2017.
The Supreme Court appeared to be sharply divided at the argument, with Justice Kennedy questioning the plaintiffs’ standing and Justice John Roberts calling the efficiency gap "sociological gobbledygook." Justice Neil Gorsuch wondered if every district and every election would become subject to litigation. Although the plaintiffs in Gill asserted a First Amendment claim in their original complaint, the focus of the case was on the 14th Amendment equal protection claim.
Later in the term, the Supreme Court granted cert and heard oral arguments in a case that puts the First Amendment issue squarely before them. In Benisek v. Lamone, a group of Maryland voters challenged the state’s congressional map as a partisan gerrymander that violated the First Amendment freedom of association. Last August, the lower court denied the plaintiffs’ request for an injunction blocking use of the maps and entered an order staying any further proceedings in the case pending a decision by the Supreme Court in Gill.
The constitutional test proposed by the Benisek plaintiffs was one of asking whether there was a bad partisan intent to the redistricting plan — there was no mention or use of the efficiency gap. Indeed, several Supreme Court commentators have theorized that the Supreme Court took Benisek due to its dissatisfaction with the efficiency gap.
At the oral argument before the Supreme Court, it appeared that the Supreme Court had not reached any agreement on how to resolve the issues concerning partisan gerrymandering. Justice Stephen Breyer suggested setting both the Wisconsin and Maryland cases for reargument in the fall, along with a pending North Carolina case. One might interpret this as a plea for Justice Kennedy to stay on the Supreme Court to resolve the issue.
The oral arguments in Benisek and Gill depict a sharply divided Supreme Court on the justiciability of partisan gerrymandering claims and the best constitutional test, if any, to apply to reviewing gerrymandered maps. Perhaps the great hope expressed for the Supreme Court to rein in partisan gerrymandering will end with a whimper.
With the 2020 reapportionment and redistricting right around the corner, map-drawers across the nation are eagerly anticipating a ruling from the Supreme Court. By the end of the term in June, we will find out if the Supreme Court finds a manageable constitutional test or if it punts the issue away.
Republished with permission. This article first appeared in Law360 on June 7, 2018.