Gill v. Whitford

  • September 13, 2017
    Guest Post

    by Matt Lynch, Special Counsel, Foley & Lardner LLP and Steering Committee member, ACS Madison Lawyer Chapter

    Few are willing to defend the practice of partisan gerrymandering on its merits.  Republican lawmakers, Democratic lawmakers, historians, political scientists, law professors, partisan interest groups, and nonpartisan interest groups alike all agree that gerrymandering—drawing legislative districts for the purpose of political advantage—is a pox on representative government. But stopping the practice requires legislators to voluntarily harm their own chances for re-election.  And so gerrymandering continues, now aided by more precise voter data than we have ever had, and the technology to use it on a broad, state-wide scale.

    Gill v. Whitford, a case arising from Wisconsin’s heavily gerrymandered districts, presents the United States Supreme Court with a clean opportunity to rein in that despised practice.  The only question is whether the justices—namely swing Justice Anthony Kennedy—believe it is a problem that warrants a judicial solution.

  • September 13, 2017
    Guest Post

    by Daniel TokajiCharles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law

    *This piece originally ran on SCOTUSblog as a part of their Summer Symposium on Gill v. Whitford

    A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.