Supreme Court has a chance to fix glitch in American democracy

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.

The System Glitch of Gerrymandering

The Framers were experts in designing a system of government that bent individual ambition toward the public good, and elections were their primary tool.  Elections tied legislators’ ambition to the public will; they could only serve their ambitions by getting elected, and winning elections required winning over a majority of voters.  In the face of changing political winds, the Framers expected that incumbents’ instincts for self-preservation would force them to moderate their positions to stay squarely in the mainstream of prevailing public opinion.  And that is more-or-less how it works, at least in districts that are competitive.

The problem is, those same survival instincts make legislators fearful of sitting in competitive seats.  Legislators in competitive districts must make constant efforts to satisfy the elusive middle—and even if they do, a partisan “wave” election of a few percentage points can wipe them out through no fault of their own.  Legislators would much rather sit in “safe” districts, where the voter makeup is sufficiently lopsided in their party’s favor that they are sheltered from political storms.  So, when given the opportunity to draw their own district boundaries—as they are in most U.S. states—legislators naturally tend to create safe districts for themselves.

Too many safe districts cause a serious glitch in the Framers’ design.  Instead of forcing legislators to moderate their positions toward the middle, where the majority will lies, safe districts actually make moderation dangerous for legislators.  The greatest risk to a legislator in a safe, 60-40 partisan district comes from displeasing the majority party’s base voters and losing a primary challenge.  Therefore, the best strategy for self-preservation in a safe district is to fight for the priorities of the majority party’s base voters, come hell or high water, and give them no excuse to go hunting for a more fervent candidate.  Stock a legislative body full of safe districts, and it becomes a hyper-partisan collection of hard-liners with no incentive to compromise.  The only way to get things done is through majority control of the legislature—and gerrymandering can help make majority control “safe,” as well. 

To lock in control of the legislature, the majority party need only create enough safe seats to weather political storms and retain its majority until the next redistricting.  To do it, the majority party must  “pack” heavy concentrations of the other party’s voters in super-safe districts, then scatter (or “crack”) the rest evenly among the remaining districts.  Packing and cracking rests on a simple premise:  for every super-safe 80-20 district created for the minority party, the majority party can create three pretty-safe 60-40 districts for itself.  Repeat that process many times in the course of drawing legislative maps, and one party can turn a 50-50 state into a durable, overwhelming legislative majority—with members that are not responsive to the middle ground of public opinion, but rather to the most hardened elements of that party’s base.

And that brings us to the fate of Wisconsin over the past seven years, and the case of Gill v. Whitford.

The Wisconsin Gerrymander and Its Effects

Wisconsin is a 50-50 state.  Within the last 12 years, it has elected a Republican governor (Scott Walker) and a Democratic one (Jim Doyle); it elected a Republican senator (Ron Johnson) and two Democratic ones (Herb Kohl and Tammy Baldwin); it voted twice for Barack Obama, and once for Donald Trump. 

But the stars aligned for Republicans in 2010.  In a wave election that catapulted the career of state-party chairman Reince Priebus, Republicans won close races for the governorship and both houses of the Wisconsin legislature—giving them control over the entire 2011 redistricting process.  

They immediately set to work on safeguarding their majority, drawing new boundaries for the State’s 99 Assembly districts.  Consultants and staffers huddled at a law firm across the street from the Capitol grounds, where protests over Republicans’ first major legislative initiative to weaken unions were raging.  Inside the firm’s dedicated “map room,” they relied on state-of-the-art mapping technology and voter information to pack and crack and produce a map designed to deliver safe Republican majorities regardless of shifts in the political winds.  The drafters were open about their partisan objectives; they even named their draft maps according to how aggressively they packed and cracked Democratic voters.

The 2011 Wisconsin gerrymander had its intended effect, entrenching a Republican majority impervious to political tides.  When the winds were against Wisconsin Republicans—as they were in 2012, when their Assembly candidates captured only 48 percent of the statewide vote—they nevertheless captured a commanding 60-39 majority in the Assembly.  When the winds were in their favor, such as their 52 percent performance in 2014, they grew their majority to almost two-to-one.  Good weather or bad, it made no difference:  with Democratic voting blocs packed in super-safe districts or cracked among pretty-safe Republican ones, the drafters sought to ensure that Republican legislative control of this 50-50 state would persist under all likely election scenarios.

The combination of safe districts and a safe majority removed incentives for legislators to moderate their views and find common ground.  In the years that followed, the gerrymandered legislature enacted laws slashing state funding for the University of Wisconsin (opposed by two-thirds of Wisconsin citizens), weakening a government watchdog agency (opposed by more than 60 percent of citizens), weakening labor unions (leading to weeks of mass protests at the Capitol), and weakening state environmental standards. Those measures may have been inconsistent with the wishes of voters in the middle, but they were popular with the majority’s base donors and voters—and those are the people who legislators in safe districts need to keep satisfied.

Gill v. Whitford: A Chance to Fix the Glitch

Legislators’ self-preservation instincts gave rise to gerrymandering, and those same incentives prevent them from stopping it.  They may all agree that gerrymandering is bad for the public interest, but they also believe that their presence in the legislature is good for the public interest.  (At least we hope so.)  For that reason, few legislators would willingly give up a safe seat for a competitive one.  And so this bug in the design of our legislative branches persists.

The United States Supreme Court is now positioned to fix it, if it chooses to take that leap.  It has been hesitant to do so in the past, finding that the Equal Protection Clause imposed limits on gerrymandering in some contexts (such as racial discrimination), but declining to specify when, if, or how purely partisan gerrymandering would violate the Constitution.  We should finally get an answer to that question this Term in Gill v. Whitford, a case challenging Wisconsin’s 2011 legislative map.

Last winter, a panel of federal judges declared the map unconstitutional, finding that Republicans’ heavy gerrymandering violated the Equal Protection Clause and First Amendment restrictions on viewpoint discrimination.  The majority opinion crafted and applied a three-part test: (1) whether the map was intended to pack and crack the other party’s voters, making their votes less significant to election outcomes; (2) whether the map accomplished that goal; and (3) whether that effect can be explained by natural political geography, an unusual election year, or something other than intentional gerrymandering.

Wisconsin’s 2011 map bombed the test. Intent was indisputable:  the drafters built models for the purpose of maximizing partisan advantage; they categorized maps based on their expected levels of Republican gains; and they touted that purpose in their communications to Republican lawmakers.  And the effects were clear, because (a) the drafters had measured the expected effects when they created their maps; and (b) in two subsequent elections, their expectations proved true. In both elections, Republicans won majorities that far exceeded their overall performance on a statewide basis, and exceeded the outcomes they would have achieved under a host of less-gerrymandered maps.

Those elections also produced an exceptionally high “efficiency gap,” a measure of the relative significance of each party’s votes.  Under that measure, votes that are needed for a party’s candidate to win are considered “efficient”; all other votes for the party’s candidates are not. In “packed” 80-20 Democratic districts, only a quarter of the Democrats’ 80 percent vote total is efficient—the rest is superfluous, more than the candidate needed in order to win the seat.  But in 60-40 Republican districts, a full two-thirds of the Republicans’ 60 percent vote total is efficient.  The difference between those rates is the “efficiency gap” between the parties, and high efficiency gaps in otherwise competitive states suggest partisan gerrymandering. In Wisconsin, Republican votes were more than 10 percent more efficient than Democratic ones in 2012 and 2014—among the highest efficiency gaps in the country.  (By comparison, between 1972 and 2014 the median efficiency gap in state legislative maps across the country was less than one percent.) 

The panel majority found no innocent explanations for that degree of disparity.  The efficiency gap was no fluke; it had persisted through two elections.  Nor could it be dismissed as a byproduct of Wisconsin’s natural political geography.  Though that geography is generally favorable to Republicans—heavy concentrations of Democratic voters in Madison and Milwaukee make for easy packing—it did not explain the extensive cracking of Democratic concentrations in mid-size industrial and university towns across the State.  Nor did natural political geography explain why other alternative maps produced significantly smaller efficiency gaps.  

In short, the 2011 Wisconsin redistricting was as nakedly partisan and effective as gerrymanders get.  Those facts leave little room for the Supreme Court to dodge the big questions:  is partisan gerrymandering unconstitutional?  If so, is there a judicial remedy for it?  In 2004, when given an opportunity to join four conservative justices and close that door, Justice Anthony Kennedy chose to keep it ajar—writing 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.”  This Term, we will learn whether he’s ready to swing it open, and use judicial oversight to fix a glitch that was overlooked by the designers of our representative government.