Redistricting

  • 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.

  • March 3, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center’s blog.

    by Noah B. Lindell, Legal Fellow, Campaign Legal Center

    This week, the U.S. Supreme Court issued its decision in Bethune-Hill v. Virginia State Board of Elections. The Supreme Court told the lower court to go back and take a second look at 11 state house districts to determine whether they constitute racial gerrymanders. But it is the reason why the Court required the do-over that is so significant.

    Bethune-Hill arrived at the Supreme Court after a three-judge federal district court held that the Virginia legislature’s plain use of racial quotas to unnecessarily pack black voters into state legislative districts did not violate the 14th Amendment’s ban on racial gerrymandering.

    In drawing the districts, the Virginia Legislature required all 11 districts to meet a quota of at least 55 percent black voting-age population (BVAP). These sorts of targets tend to be used to pack minority voters into smaller numbers of districts, reducing the influence of the minority population statewide. According to the district court, this race-based intent did not matter, because the districts could, after the fact, be explained by other factors.  But the three-judge court’s ruling was at odds with the Supreme Court’s 2015 decision in Alabama Legislative Black Caucus v Alabama, which held that a legislature’s unsupported insistence on rigid and mechanical racial targets for state legislative districts provides strong evidence of an unconstitutional racial gerrymander.

    Virginia had argued that voters must show an “actual conflict” between race and the more traditional criteria that states use for redistricting, like preserving municipal boundaries and keeping districts compact. As long as a state shows that it could have made the same districts without using race, a racial gerrymandering claim could not go forward. In other words, legislatures could act with a racially discriminatory intent as long as the districts were drawn neatly. Moreover, as the Supreme Court recognized, the traditional criteria relied upon are so malleable that this test would have insulated nearly every racial gerrymander so long as the legislature could invent an explanation for its district lines after the fact.

  • 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