In a major victory for those who believe it must be up to the courts to rein in reapportionment plans that give an unfair advantage to one political party or another, a three-judge federal panel of judges ruled last week (Nov. 21) that Assembly districts in the Wisconsin legislature, drawn up by majority Republicans five years ago, constitute an unconstitutional partisan gerrymander.
This is the first time ever that a federal court has found partisan gerrymandering to be unconstitutional.
In a 2-1 split decision in a case called Whitford v Gill, the Wisconsin panel held that GOP lawmakers enacted a redistricting plan for the Assembly (in Michigan, this would be the state House of Representatives) that systemically diluted the voting strength of Democratic voters statewide.
This redistricting law (known as Act 43) was intended to impede for a decade the ability of Democrats to translate their votes into legislative seats. Act 43 had an immediate effect: in 2012, Republicans received only 48.6% of the aggregate statewide vote for Assembly districts, but they won 60 of the 99 seats up for election. In 2014, GOP Assembly candidates received an 52% of the aggregate vote (a majority, to be sure), but that translated into a whopping 63 of the 99 seats. The panel ruled that these results are “not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander.”
Interestingly, Republicans can’t protest this verdict as the result of a “bad draw’ of judges with Democratic backgrounds. Two of the three judges were appointed by Republican presidents (Ronald Reagan and George W. Bush) and one by a Democrat (Jimmy Carter). Only the Bush appointee dissented.
Hope for the Wisconsin GOP lies in the fact that the two judges who found for the plaintiffs did not provide for an immediate remedy. Instead, the panel directed the parties to file briefs within the next 30 days (in other words, by Christmas) to address the remedial portion of the case. That remedy might be a remand back to the Legislature to enact a new plan , or the appointment of “special master” to draw a plan for the panel to adopt and order into effect.
The Wisconsin Attorney General (a Republican) has promised an appeal to the U.S. Supreme Court. How quickly that appeal might be taken up by the high bench could have an impact on Michigan’s 2018 state legislative elections where candidates for 110 state House seats and 38 for the state Senate will be on the ballot. If the U.S. Supremes should schedule an oral argument in Whitford v Gill by next April, it could be possible for a decision from the Court by the end of June, 2017. That would allow for a similar three-judge panel in Michigan to follow the U.S. Supreme Court ruling and act before the 2018 candidate filing deadline.
In Wisconsin, the Democrat-backed plaintiffs argued their case by creating a formula called the “efficiency gap,” which showed mathematically that the 2011 Wisconsin remap minimized the strength of Democratic votes. The formula divides the number of “wasted votes” — either unnecessarily cast for the winning party or all votes cast for the losing party — by the total number of votes in the election. Statisticians calculated Republicans had an “efficiency gap” of between 11% and 13%. The plaintiff’s “expert witnesses” argued that any gap over 7% constitutes an unconstitutional gerrymander.
In dissent, the Bush-appointed judge argued that the plaintiffs did not even attempt to argue that Act 43 violates traditional redistricting principles, i.e., contiguity, compactness, and respect for political subdivisions). On that basis alone, the judges should have entered a judgment in favor of the Republican plan, he claimed. The dissent noted that there were no allegations of unusually-shaped districts that are traditional hallmarks in gerrymandering cases. The dissenting judge skewered the “efficiency gap” argument as little more than an enshrinement of a phantom constitutional right of proportional representation that presupposes that voters are casting ballots for a statewide party rather than individual candidates. Furthermore, the “efficiency gap” calculation does not adequately account for Wisconsin’s political geography which naturally “packs” large numbers of Democrats into urban areas like Milwaukee and Madison, resulting in tens of thousands of “wasted” votes in inevitable landslide victories for Assembly candidates.
Unlike most other federal cases, any appeal of a ruling by a three-judge panel does not go to the federal circuit court of appeals. Rather, it goes directly to the U.S. Supreme Court, which can either affirm the judgment, or schedule the case for full briefing and discussion, or not take it up at all, in which case the lower court’s decision would stand ( at least for the time being).
So, what might the Supreme Court do? With President Obama’s nomination of Merrick Garland (to replace the late Antonin Scalia) DOA, President-elect Donald Trump is primed to nominate someone to fill the Scalia vacancy and restore the court to a full nine members — five appointed by Republican presidents, four by Democrats.
However, Reagan appointee Anthony Kennedy appears likely will be the key to the outcome of the Wisconsin litigation, not the Scalia replacement appointed by Trump. The reason is that the four Democrats on the court — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — are likely to be “locked in” as supporters of the “efficiency gap” argument advanced by the Wisconsin plaintiffs. Only John Roberts, Samuel Alito, Clarence Thomas and the Trump appointee can be considered likely opponents.
Kennedy, however, is widely viewed as the “swing” vote on the high bench in all major cases — he may have voted in favor of Citizens United, but he also voted with the four Democratic appointees over the past two Supreme Court terms on same sex marriage, abortion, affirmative action, and whether independent redistricting commissions can be permitted to perform Congressional reapportionment rather than state legislatures. In 2004, Kennedy voted somewhat reluctantly not to find partisan gerrymandering in the Vieth v Jubelirer case, but, in his opinion concurring with the majority ruling written by Republican-appointed justices, he said that if a “manageable standard’ were to be developed in a future case, he might rule differently. The Wisconsin plaintiffs are banking on a finding by Kennedy that the “efficiency gap” is just such a standard.
If Kennedy, now 80 years of age (the second-oldest justice on the court), gets an opportunity to opine on the Wisconsin ruling and affirms it, Michigan’s 2011 reapportionment plans (for the U.S. House and both chambers of the state legislature) could similarly fail an “efficiency gap” analysis. We can expect Michigan Democrats to file a law suit similar to Whitford v Gill seeking to scrap Michigan’s current maps and demanding that new maps be drawn. That could happen either before the U.S. Supreme Court might rule on the Wisconsin litigation, or after it has done so.
Indeed, a “nuclear” decision by the high bench next June that goes against the Wisconsin GOP might result in Michigan Republicans witnessing the shredding of their 2011 maps with no recourse.
For more on the Whitford case and its possible impact on Michigan’s redistricting future, see the Sept. 2, 2016, online article in The Ballenger Report, with commentary by legal/judicial guru Bob LaBrant of Lansing’s Sterling Corporation.