Last updated: September 8, 2019
Topic: LawGovernment
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Plaintiff-appellee William Whitford challenged a map drawn by the Wisconsin Legislature on the ground that the districting constitutes an unconstitutional political gerrymander. A federal court struck the plan down last year, concluding that it violated the Constitution for being a product of partisan gerrymandering, the practice of deliberately drawing districting lines to favor one party and put another at a disadvantage. In over forty years, a Republican majority was elected by the Wisconsin voters, in 2010, in both the state assembly and the senate. The state Assembly districts were then redrawn in 2011 by Republican legislators. The mapmakers developed a model to ensure Republican majority under any type voting scenario. The new redistricting map was approved by the state as Act 43 in August 2011. Following this, the 2012 elections resulted in Republicans gaining 60.6% of the seats in the State Assembly, even though they only won 48.6% of the statewide vote. The District Court applied their three-prong test to the Wisconsin State Assembly’s Act 43 as unconstitutional. The three-prong test outlined discriminatory intent, discriminator effect, and a valid justification for the effect. The drafters of the map “systematically cracked and packed Democratic voters”to “guarantee that the Republicans a supermajority of Assembly seats” (brief, 3) even if they only claim a minority of the statewide vote. The court concluded that Act 43’s asymmetry was intentional. The court also determined that no neutral justification was available for Act 43’s discriminatory effect. Several other maps created demonstrated that Appellants could have “achieved valid redistricting goals without handicapping either party’s supporters” (brief, 3) and create a fairer redistricting plan. PART ONE — INTRO/PAST CASESEvery political gerrymandering standard that has been proposed up until this point has been rejected by the Court. In LULAC, however, a majority of the justices were open to implement a standard, and spoke in favor of partisan symmetry. Partisan symmetry highlights the idea that “a plan should treat the major parties symmetrically” (PG and EG) when converting votes to seats. the major parties should be treated symmetrically. No plaintiff that raised gerrymandering claims has argued for a partisan symmetry test since five justices in LULAC expressed their favorability towards it. The Court’s case law prior to LULAC highlights the hesitant acceptance of a standard that no plaintiff had met in Davis v. Bandemer, which followed the rejection of almost every test proposed in Vieth v. Jubelirer by the justices. The justices have considered all tests put forth by plaintiffs and each other, however, no test has been judicially discernible and manageable. Manageability refers to how “concrete a particular test is and how capable” (nyu law review) it will be in guiding future justices. Discernibility refers “to whether a doctrinal is suggested or compelled by legitimate legal materials such as constitutional language, structure, history, and precedent.” (nyu law review) JUSTICE SCALIA rejects each standard by “(1) arguing that they are too loose and unpredictable (i.e., unmanageable) or (2) arguing that admittedly manageable standards from other areas of constitutional law are not discernible in the Constitution” (nyu law review). Between Bandemer and Vieth, a plaintiff has not been able to convince the Court to strike down a district map on partisan gerrymandering grounds. The approach of the Bandemer plurality and JUSTICE POWELL’s argument for a totality-of-the-circumstances test were unmanageable for the plurality in Vieth. Along with the standards in Bandemer, JUSTICE SOUTER’s five-part test that required subjective quantification, JUSTICE STEVEN’s intent-based test, and JUSTICE BREYER’s unjustified minority entrenchment test were all rejected by the Vieth plurality for being unmanageable. The Court, since, has not been able to find a test that is both judicially discernible and manageable. Although no test has been identified between Bandemer and Vieth, JUSTICE KENNEDY concurred in Vieth stating that he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases” (Vieth-Kennedy p.1). After Vieth, a majority of the justices in LULAC expressed interest in the idea of partisan symmetry, which has been before the Court prior to partisan gerrymandering claims. JUSTICE KENNEDY wrote in his concurring opinion in LULAC that he did not “altogether discount its utility in redistricting and partisan litigation” (LULAC-Kennedy), referring to partisan symmetry and leaving the door open for the use of such a standard in future cases. PART TWO — JUDICIALLY DISCERNIBLEAccording to the District Court’s proposed test, a court must find discriminatory intent, a large discriminatory effect, and a lack of any valid justification in order to invalidate a plan. Direct or circumstantial evidence on the motives of the mapmakers and those who passed it into a law can be proven through evidence. Next, election results and measures of partisan symmetry like partisan bias and the efficiency gap can establish a discriminatory effect. A. Addressing the constitutional harms inflicted by partisan gerrymanderingIn the past, the Court has viewed partisan gerrymandering “as causing equal protection injury of intentional vote dilution” (brief, 34). The precedent set by Davis v. Bandemer held that unconstitutional discrimination occurs when a district plan “degrades a voter’s or a group of voters’ influences on the political process as a whole” (Bandemer). Wisconsin’s Act 43 was drawn to promote Republican influence and maintain this influence under any possible voting scenario. One of the constitutional problems with gerrymandering is the burden “a given partisan classification imposes on representational rights” (Vieth, Kennedy). Other justices in Vieth have characterized gerrymandering as “intentional vote dilution” (Vieth) as well, which makes it difficult for the targeted voters to elect their preferred candidate. Vote dilution, as recognized by the Court, is unjust because it does not representatively respond to voters’ needs and interests. Although, past precedent outlines that the elected official will consider the views of the other major party, the map created in Wisconsin intentionally meant to silence the Democratic voters and the elected officials voted in would be unresponsive to their needs. The test’s effect prong centers around partisan asymmetry of the map outlined by the Wisconsin legislature. Partisan asymmetry measures vote dilution. The partisan asymmetry indicates that certain voters in Wisconsin are less able to convert their ballots into representation, making it difficult for these voters to elect their chosen candidate. The targeted party’s voters’ political philosophy prevents them from being able to influence the political process.B. Partisan symmetry is a “comprehensive and neutral principle” JUSTICE KENNEDY’s concurrence in Vieth v. Jubelirer states that the Court lacks “comprehensive and neutral principles for drawing electoral boundaries” (Vieth, Kennedy), however, the Whitford test is partly based on the concept of partisan symmetry which is a “comprehensive and neutral principle” for designing and evaluating plans. In LULAC, the Court was presented with the social science principle that district maps should treat parties symmetrically, “enabling them to translate their popular support into legislative representation with approximately equal ease” (brief, 37). The Court has not rejected the partisan symmetry standard “and future plaintiffs are free to try to convince the Court that it is an appropriate standard” (GM in America, 53) as a majority of the justices have responded positively towards the idea. The Whitford test incorporates a measure of asymmetry into its effect prong, which is the efficiency gap. Partisan symmetry is comprehensive if it can be applied to any district map. The Brief of Respondents states that the expert for the appellees “did compute partisan symmetry for almost every state house map from 1972 onward” (brief, 38) in Wisconsin. It is also neutral because by definition, partisan symmetry is the symmetric treatment of voters’ votes no matter what party they favor. Thus, if a plan is symmetric plan, it is neutral and offers each party’s supporters equal opportunity to convert ballots into representation. The appellants argue that partisan symmetry is related to proportional representation, but the Court has rejected this in both Bandemer and Vieth. The accepted definition of proportional representation is the “share of legislative seats that is equal to a party’s share of the jurisdiction-wide vote” (brief, 39). The district court found that the efficiency gap does not require “that each party receive a share of seats in proportion to its vote share” (brief, 40). The efficiency gap is a tool that compares the wasted votes of each party; it does not determine whether a party’s percentage of statewide votes is reflected in the number of representatives elected by that party. The efficiency gap provides analysis that captures how deviated a plan is from the historical norm and provides guidance to courts and mapmakers to analyze “how much partisan bias is too much” (gerrymandering in america, 54) on state maps. JUSTICE KENNEDY’s skepticism on the symmetry standard is because it does not provide a reliable measure of unconstitutional partisanship, however, the efficiency gap provides a useful social scientific tool in assessing this standard as it applies to state plans.C. All three prongs of the test are rooted in the Court’s partisan gerrymandering case law. The principles of the First and Fourteenth Amendments are reflected in the intent prong: “plaintiffs are required to prove…intentional discrimination against an identifiable political group” (Bandemer, plurality). Under this prong, political classifications are not inherently problematic, however, they become so when they are “applied in an invidious manner” (Vieth, Kennedy). Therefore, the intent prong can be administered, but the plaintiffs responsible for proving the intent behind the way a particular map is drawn. The test’s second prong’s requirement of a large discriminatory effect refers to the Court’s decision that “more than a de minimis effect” (Bandemer, plurality) is necessary before the mapmakers are held liable, meaning that a minimal effect of discrimination is not sufficient enough to hold mapmakers liable. Lastly, the test’s justification prong responds to the Court’s “remarks that maps should not be struck down” if partisan “imbalances can be explained by neutral factors” (brief, 43). If a jurisdiction is able to justify the discriminatory effect of a plan by referencing factors other than pure partisan advantage,  judicial intervention is not necessary. PART THREE — MANAGEABILITY A test must not be only judicially discernible, but must also be manageable. In order for a test to be manageable it needs to be workable. The test’s prongs must be easy to administer and straightforward. A. The test’s intent and justification prongs have been successfully been applied prior to this case. Even though intent is difficult to prove, the appellants do not disagree that the district court’s intent prong is workable (brief of appellants, 45). The Court has been able to distinguish cases of partisan gerrymandering that have shown intent behind the way legislators have drawn the plan to severely impede on the effectiveness of the votes of certain voters that are affiliated with a particular party and those maps that are drawn without this aim. In Bandemer, the plurality was, for example, “confident that, if the law challenged here had discriminatory effects on Democrats, this record would support a finding that the discrimination was intentional.” (Bandemer, plurality). Also, in LULAC, JUSTICE KENNEDY concluded that the legislature seemed to “have decided to redistrict with the sole purpose of achieving a Republican congressional majority” (LULAC, Kennedy opinion). The argument set forth by the Appellants refrains from challenging the test’s justification prong because the prong derives from the Court’s one person, one vote cases “where…it has enabled the Court to separate plans where large population deviations are justified by legitimate factors from maps where malapportionment cannot be properly explained” (brief, 45). Because both intent and justification prongs have been previously applied successfully in partisan gerrymandering and malapportionment claims, proves the manageable aspect of these two prongs.B. The effect prong is also easy to conduct. To satisfy this prong, the plaintiffs need to be able to show that a plan exhibiting partisan asymmetry can be established through evidence provided by the map’s partisan bias or efficiency gap. If both these measures reveal large asymmetry, the plaintiffs case becomes much stronger. Under Bandemer’s two-prong test, the district court “had no difficulty accepting the charge under Bandemer’s first prong… but concluded there was no evidence of ‘consistent degradation of the political process as a whole'” (Drawing the Lines, 35). For the effect prong, however, in Whitford, the plaintiffs argue to incorporate social science to calculate the large discriminatory effect. The appellants argue against incorporating social science into a test for gerrymandering, but historically the Court has not been against empirical evidence. In fact, in Vieth JUSTICE KENNEDY optimistically stated that “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders imposes on the representational rights of voters and parties.” (Vieth-Kennedy p.7). The tools implemented by the appellees, the partisan bias and efficiency gap, capture the “representational burdens of gerrymanders relative to a benchmark of neutral treatment” (brief, 47). In addition, the Court’s approach has never been to search for only one metric, unlike the appellants’ claim that the use of multiple metrics shows the instability of the prong. C. The test’s is neutral and limited and does not favor one side over the other. The test does not shield either side, nor does it threaten one party’s plans over the other’s. The test’s three prongs are based off of one another, from which the neutrality of it stems from. The Appellants allege, without providing evidence, that the Republican-favored map is due to the political geography of the voters of this party. The Appellees’ expert “found that in state house elections from 1972 onward” both partisan bias and efficiency gap have had “means and medians very close to zero” (brief, 51). This is because no one party has had an advantage over the other. However, the recent shift in a Republican-controlled state government has resulted in the average efficiency gap moving in a Republican direction. The expert that analyzed state house plans since 1972 discovered that “only one-fifth were enacted by a party in full control…exhibiting and initial efficiency gap above 7%” and of the flags marked with 7%, “three-fifths were enacted by-and subsequently favored-Democrats” (brief, 53). And more than half the plans that were above 10% cutoff were pro-Democratic in intent and effect. These statistics show that the bias is not just against Republican maps, but more pro-Democratic maps would have been called into question. This is an example of the test being, as JUSTICE KENNEDY stated in Vieth, “limited and precise” and does not “commit federal and state courts to unprecedented intervention” (Vieth). The test offered and the efficiency gap metric being applied is neutral and does not favor one major party’s map over the other’s. D. The test has been applied recently in a North Carolina case on partisan gerrymandering, proving the manageability of the test. The decision of striking down North Carolina’s congressional plan demonstrated the manageability of the partisan gerrymandering test that is proposed in Whitford, as it applied to the North Carolina case. Two federal courts and five judges employed the test without any difficulty. The plaintiffs in the North Carolina case and Whitford “so not seek to constitutionalize any of the empirical analyses they have put forward,” but that quantitative evidence, such as the efficiency gap can “provide evidence” (election law blog) that a plan violates constitutional standards. The court in North Carolina stated that it makes no sense for courts “to close their eyes to new scientific or statistical methods,” (election law blog) criticizing the defendants for their view that analysis that is rooted in academic research should be disregarded. PART FOUR — THE EFFICIENCY GAP SETTING A THRESHOLD – HOW MUCH IS TOO MUCH? The issue raised by the Court in Vieth was how to distinguish between some partisan unfairness and too much unfairness, with some unfairness being lawful. The Court’s core problem is determining when a partisan plan has gone too far, saying that the “unanswerable question” is how “much political motivation and effect is too much” (Vieth, plurality 296-97) and again in LULAC commenting on the Court not having “standard for deciding how much partisan dominance is too much” (LULAC, plurality) for partisan symmetry. No verbal formulations offered by the plaintiffs or the dissenting justices in Vieth satisfiably answered the “unanswerable question.” The absence of “an objective baseline made it difficult to measure the harm and define an impermissible threshold of constitutional injury” (GM and the Const Norm). Legitimate plans could not be told apart from “invalid ones based on qualitative standards” (jstor PG and EG, 885) such as “predominant intent,” “extremity of unfairness,” or “unjustified entrenchment” (Vieth, dissents p. 284, 295, 299) of the minority, all of which are plans offered by the dissenting justices in Vieth. Unless one can initially identify “the “fair” baseline entitlement of political representation” can be initially identified, “it is impossible to judge precisely when a gerrymander inflicts excessive harm by granting less representation than the rightful allocation” (GM and the Const Norm). The Court is accurate is claiming that no qualitative measure can differentiate between lawful and unlawful plans with sufficient consistency. However, a quantitative measure that “relies on a calculable metric of gerrymandering” enables the Court to avoid “hazy verbal formulations by adopting precise deviation thresholds” (jstor PG and EG, 886). This quantitative measure reliably helps to answer what Vieth raises as an “unanswerable question” of how much partisan unfairness is too much. Partisan bias and efficiency gap are very closely related and are viable metrics to be used under an overall test for partisan gerrymandering. However, the concerns raised by Kennedy in LULAC on partisan symmetry that it “may in large part depend on conjecture about where possible vote-switchers will reside” (LULAC) refers only to partisan bias, a specific measure of partisan symmetry that was cited by a political scientist’s amicus brief. This does not include the efficiency gap. Partisan bias, although very similar to efficiency gap, is distinct and offers a different approach. Partisan bias requires the estimation of a hypothetical election in which the parties’ vote share flips, or is fifty percent. These hypothetical election results are measured by “assuming that the parties’ vote shares shift by the same amount in each district” (LULAC, p.420). JUSTICE KENNEDY views this assumption as problematic because partisan swing is unlikely to be uniform. The efficiency gap, on the other hand, avoids the estimation of results of a hypothetical election. The wasted votes are calculated from actual election results and used in the formula for the efficiency gap. The efficiency gap can consider uniform swing as a factor in its formula, however, uniform swing is a prerequisite for calculating partisan bias. JUSTICE KENNEDY’s other objection was that asymmetry alone is not a reliable measure for unconstitutional partisan gerrymandering. Meaning that a standard for unlawful partisanship should include asymmetry and other applicable factors in determining if a plan is unconstitutional. Other traditional redistricting criteria such as compactness, contiguity, consideration of political subdivisions, and political geography can be considered along with asymmetry. The Court would first need to set a threshold for the efficiency gap above which district plans would be presumptively unlawful or below which they would be considered valid. As suggested by Nicholas Stephanopoulos and Eric McGhee, they would recommend setting the bar “at two seats for congressional plans and 8 percent for state house plans” and that the plans are never to have “an efficiency gap of zero in their lifetimes” (PG and EG, 884). Under the Whitford test, as mentioned in a previous section, the Appellees set 7% as their threshold after their expert analyzed Wisconsin maps from 1972 to 2014. A plan that exceeds the offered threshold would have the ability to argue for why the gap was necessary under legitimate state policy or inevitable due to the state’s political geography. A plaintiff could offer another map in which a smaller gap is attainable while still maintaining the state’s goals. Respondents can argue using political geography, stating that the map was inevitably drawn due to the state’s underlying political geography. The claim may be that the state wanted a fairer map, however, the spatial distribution of parties’ supporters in the state led to a gap over the accepted threshold. Such claims would need to be supported with “cartographic evidence…in the form of maps showing that a smaller gap simply could not have been produced” (PG and EG, 892). As long as such a map is made, then the partisan maps can remain in place. The efficiency gap is one available metric that can be applied by the Court under the District Court’s three-prong test to prove unconstitutional gerrymandering as it is a viable option for the Court to adopt.