Redistricting

  • November 2, 2016
    Guest Post

    by Matt Lynch, Steering Committee member of ACS Madison Lawyer Chapter, and Britt Cudaback, President of ACS University of Wisconsin Law School Student Chapter

    In the early months of 2011, while thousands of protesters demonstrated daily against the anti-union laws they advocated, Wisconsin GOP legislators crafted and enacted two measures that made it more difficult for their detractors to vote them out of power:  partisan redistricting and strict voter identification requirements.  While court challenges to the anti-union laws have now largely run their course, the legal battles over Wisconsin’s district maps and voter ID law have taken novel forms—and may soon offer tempting opportunities for the U.S. Supreme Court to bolster the procedural protections for participatory democracy.

    Key players from both sides of those cases huddled with more than 70 attorneys and law students last Thursday night for “Wisconsin Election Law:  Navigating the Thicket,” a panel discussion held at a Capitol Square restaurant overlooking the site of the 2011 demonstrations.  The event was co-sponsored by the Federalist Society, the ACS University of Wisconsin Law School Student Chapter, and the newly formed ACS Madison Lawyer Chapter.  UW Law School Assistant Professor Robert Yablon moderated the discussion.

    New Tools for Political Gerrymandering – and a New Tool to Challenge It

    In Wisconsin, the state legislature is primarily responsible for drawing legislative districts following the census, a system that incentivizes partisan gerrymandering by the majority party. Historically, gerrymandering was associated with comically misshapen districts. Since the dawn of the information age, however, egregious contortions are no longer necessary; parties can achieve the same goals of increasing partisan advantage with more subtle, computerized precision.

    With its 2011 redistricting maps, the GOP-controlled Wisconsin legislature proved just how effective these new tools could be. The following year, all 99 Assembly seats were up for election, and Wisconsin voters cast 200,000 more votes for Democratic Assembly candidates than Republican candidates.  Yet the Republicans won a commanding 60-39 majority.

    That, according to panelist and Wisconsin law professor Bill Whitford, goes so far as to deny the fundamental principle of majority rule. “Of course there’s partisan gerrymandering, always has been,” he acknowledged.  “But questions of degree are vitally important.”

    Whitford believes that a newly described measure holds the key to answering those questions of degree in a simple, objective way. He is seeking to prove it in a lawsuit challenging Wisconsin’s partisan redistricting, Whitford v. Gill, which is awaiting a post-trial decision from a three-judge federal redistricting panel.

    The new measure is the “efficiency gap,” which was described and defended in a 2015 law review article by Nicholas Stephanopoulos and Eric McGhee. The efficiency gap formula takes the total number of votes cast for a party’s candidates for legislative office statewide, then subtracts all “wasted” votes for that party—that is, votes cast for a losing candidate or those in excess of the number needed for a candidate to win. The remaining votes are “efficient,” because they proved necessary to elect a winning candidate.  Partisan gerrymandering seeks to maximize the efficiency of its party’s voters and minimize the efficiency of the other party’s voters; the difference in each party’s efficiency percentages is the map’s “efficiency gap.”

    The 2012 and 2014 Wisconsin state elections showed “efficiency gaps” of more than 10 percent in favor of Republicans—greater than any other state in the country. By comparison, the average efficiency gap in state legislative maps throughout the country between 1972 and 2014 was less than one percent.  But the yearly average has crept upward as more sophisticated tools for voter mapping have emerged; since the 2010 Census, the average gap nationally exceeds three percent in favor of Republicans.

  • August 15, 2016

    By Kevin Battersby Witenoff

    The Seventh Circuit Court was unwilling to extend Title VII non-discrimination protection based on sexual orientation, reports George M. Patterson at The National Law Review

    David G. Savage at the Los Angeles Times reports North Carolina and Wisconsin lawyers are attacking gerrymandered electoral maps that ensure suppression of voters of particular races and party affiliation.

    The Editorial Board at The New York Times shares the difficulties of citizens in Sparta, Ga. who experience overt voter suppression reminiscent of Jim Crow.  

    After a report released by the Department of Justice exposed the Federal Bureau of Prisons’ failure to appropriately monitor and control regulations in for-profit prisons, Carl Takei reexamines their necessity in an op-ed for The Marshall Project

  • April 11, 2016
    Guest Post

    by Emmet J. Bondurant and Kathay Feng

    Emmet J. Bondurant authored the Common Cause amicus brief with Jeremy D. Farris in Evenwel v. Abbott and argued the landmark redistricting case Wesberry v. Sanders before the U.S. Supreme Court in 1963. In Wesberry, the Supreme Court definitively established that the Constitution requires congressional districts be drawn counting all people.

    Kathay Feng is Common Cause’s National Redistricting Director and heads up their California operations, where she successfully championed the state’s adoption of a Citizens Redistricting Commission to draw state and congressional districts through a transparent and inclusive process.

    Last Monday morning, the entire community of voting rights advocates breathed a sigh of relief. The U.S. Supreme Court issued an 8-0 decision in Evenwel v. Abbott, written by Justice Ruth Bader Ginsberg, upholding the standard state practice of counting all people for purposes of conducting state redistricting.

    A little primer first: At the start of each decade, the Census Bureau conducts a count of every American – where they live, how many people are in a household, and basic demographic information about them. This Census data is crucial for a number of things that happen right after: We allocate the number of representatives to the Congress from each state using these numbers, we redraw the congressional districts based on this total count, AND states use these numbers to redraw the lines for the state legislative districts. The goal has always been to make sure the districts have equal numbers of people in them so the people elected to represent the districts are serving the same number of people.

    In Evenwel, two plaintiffs from Texas asked the Supreme Court to reinterpret fundamental principles of our democracy by drawing lines based on voters only, and making invisible millions of our family, friends, and neighbors who are not voters. The Court rejected this approach, unanimously holding that states may use census data counting total population to draw districts. Common Cause’s amicus brief laid out why the Supreme Court had to reject Evenwel’s argument:

    “It would [] create an indefensible situation in which states would be required by Article I, Section 2 to use total population as the basis for the redistricting of congressional districts, but be prohibited by the Equal Protection Clause from using the same standard when redistricting state legislative districts. Finally, it would break the structural link between the right of every person to equal protection under the laws enacted by the state legislature and the right of every person subject to those laws to equal representation in the houses of that legislature.”

  • December 3, 2015
    Guest Post

    by Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow at Election Law @Moritz, The Ohio State University, Moritz College of Law

    On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case.

    The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

    Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.

  • July 16, 2015
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School

    *This post originally appeared on The Huffington Post.

    When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

    The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

    Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.