In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
Will the federal judiciary start supervising elections by taking over the reapportionment process? For more than 30 years, Democrats have filed suits in federal court challenging Republican majorities in state governments on the issue of the decennial redistricting mandated by the census and accusing Republicans of “political gerrymandering.”
Now, a new case, Gill v. Whitford, is before the Supreme Court, with oral argument scheduled for today [October 3]. Wisconsin Democrats have sued the Republican legislature’s redistricting plan, which has resulted in a state house with 64 of 99 seats, that is, 64.6 percent, being held by Republicans. By contrast, the suit argues, the total statewide vote for Republicans for all the house seats was 52 percent in 2014. (For some reason, the makeup of the state senate, currently 20 of 33 seats in favor the Republicans, is not a subject of the lawsuits.) In November 2016, a three-judge panel in federal district court, by a vote of 2 to 1, found the Republican redistricting plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
The Wisconsin Democrats’ case is based on the inconclusive results of two major Supreme Court decisions on the subject of “political gerrymandering.” In Davis v. Bandemer (1986), the Court fully explored the issue of whether a state’s normal decennial redistricting, without any racial intent or effect, was a “political question” that could not be adjudicated in court. In a 7 to 2 decision, a multiple-opinion Court turned back the effort by Indiana Democrats to invalidate a redistricting plan of Indiana Republicans. However, six justices did conclude that such a case was justiciable under the Equal Protection Clause. However, the majority also held that a constitutional standard to define an equal protection violation did not exist and, therefore, no violation had occurred in Indiana. Only three justices—Warren Burger, William Rehnquist, and Sandra Day O’Connor—concluded that, regardless of any proof of a violation, political gerrymandering was a non-justiciable “political question.”
In Vieth v. Jubelirer (2004) Justice Scalia, joined by Justices Rehnquist, O’Connor, and Clarence Thomas, declared that Davis should be overruled and wrote a comprehensive refutation of the notion that courts could or should take on political gerrymandering. Scalia concluded that “the Constitution provides no right to proportional representation” based on political parties. He also pointed out that in several lawsuits in the 18 years since Davis, no “discernible” or “judicially manageable” standard for such suits had emerged.
A fifth vote rejecting the particulars of the Vieth suit was supplied by Justice Anthony Kennedy. Therein lies the rub for Gill, the case now before the Court. In his separate Vieth opinion, Kennedy did not agree that political gerrymandering was simply non-justiciable. He said that “new methods of analysis” for handling this kind of case may yet be found, and such methods could make political gerrymandering cases cognizable under the Equal Protection Clause. In other words, Justice Scalia’s opinion said that the first question was constitutional and the second methodological, and Justice Kennedy’s opinion said that a solution to the methodological question could resolve the constitutional question. Kennedy went on to make two suggestions.
Justice Kennedy’s Moment
He said that technology could set the factual standard that would enable courts to rule. “The rapid evolution of technology in the apportionment field suggests yet unexplored possibilities,” he wrote. Computer-assisted technology “may produce new methods of analysis that make more evident the precise nature of the burdens gerrymandering imposes on the representational rights of voters and parties.” Courts could then “identify and remedy the burdens, with judicial intervention limited by the [technologically] derived standards,” Kennedy concluded.
This 2004 Kennedy opinion also suggested that the First Amendment rather than the Fourteenth Amendment could be a better basis for bringing a political gerrymandering suit. A successful Fourteenth Amendment suit requires a court to rule that an unconstitutional classification was used in legislating. That is simple for a clear and narrow classification like race. But the elements of a Fourteenth Amendment political classification proposed to be declared by a court would be complicated. By comparison, a reliance on the First Amendment would supply the necessary sweeping and inclusive rationales. “The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.” Kennedy’s advocacy of the First Amendment was joined by Justice John Paul Stevens in a dissenting opinion.
In the 44-page brief of the Wisconsin Democrats in Gill, the case now before the Court, Justice Kennedy’s name occurs 32 times, and Justice Stevens is cited 11 times. Kennedy’s advocacy of “new technologies” is essentially the basis for the brief. The works of “social scientists” are discussed at length. The “efficiency gap” designed by those social scientists to measure the harm to Democratic voters is mentioned 23 times. The testimony of the “expert” witnesses at the trial in district court appears prominently. The concepts of political “symmetry” and “asymmetry” occur 36 times. The brief also proposes a quantitative way of measuring “partisan bias.”
The brief says that “analytical techniques” to measure “quantitatively the ways in which gerrymanders distort the translation of the electorate’s preferences into legislative representation” are now available. And in a direct appeal to Justice Kennedy, the brief states that “The canonical social scientific articles developing the concept of partisan asymmetry were not published until several years after Bandemer was decided.” (Emphasis in original).
In their brief, the Democrats also greatly emphasize another inconclusive and multi-opinion decision of the Supreme Court, the 2006 case of League of United Latin American Citizens, et al v. Perry (LULAC), in which Latino voters had sued the state of Texas’ redistricting plan. The case concerned House seats in the U.S. Congress, not seats in the state legislature. Justice Kennedy wrote the majority opinion for the Court. In the part of his opinion joined by Justices Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, Kennedy concluded that since the case showed that Texas had violated the Voting Rights Act of 1965, it was not necessary to decide whether an equal protection—as well as a First Amendment—violation had occurred.
Nevertheless, despite the specific statutory, not constitutional, basis for the LULAC decision, the Wisconsin Democratic plaintiffs extensively quote Justice Kennedy’s words in LULAC in support of their constitutional case. They point out that Kennedy had discussed “partisan bias” in his opinion, and they quote Kennedy that the Texas legislature had acted with the “sole purpose” of achieving a Republican majority of House seats. In LULAC, Kennedy had said that “partisan symmetry” may be a viable standard “in redistricting planning and litigation.” In his own LULAC opinion, Justice Stevens approved of Kennedy’s “leaving the door open” for the use of partisan symmetry for use in future cases. Kennedy said in LULAC that the Court should have a prime interest in gerrymandering that persists over time.
LULAC involved a statewide redistricting of the Texas congressional delegation, and the Wisconsin Democrats point this out as a justification for their strategy of attacking Wisconsin’s statewide plan rather than the malapportionment of a single state legislative district, as some justices in the previous cases had suggested. In their brief, the Wisconsin Democrats argue that no justice in LULAC found the plaintiffs at fault for not asserting that Texas had not complied with traditional redistricting criteria in their challenge but had allowed the plaintiffs to proceed in their larger constitutional claims.
The Wisconsin Democrats’ Brief
In Gill, the Wisconsin Democrats offer three main arguments.
First, they contend that the Republican-controlled legislature had acted with the intent to disadvantage them and to make that disadvantage “durable.” It may seem obvious that a partisan political party was partisan in its redistricting, for as Justice Scalia remarked in his Vieth opinion, “partisan districting is a lawful and common practice.” They argue, in addition, that the Republicans paid little attention to the neutral, nonpartisan redistricting of contiguity, compactness, or splits of political subdivisions. Interestingly, they cite only three pages from the trial record and give no examples to illustrate this point. One would have thought they could have given several dramatic examples, out of 99 districts, of grotesquely shaped districts.
Second, the Wisconsin Democrats argue that based on statewide vote totals for the two parties, there is a “large and durable pro-Republican asymmetry” in the current redistricting plan. The Republicans have “packed” an excessive number of Democrats in obviously Democratic districts, thereby resulting in “wasted” Democratic votes in those districts. They have also used the opposite tactic, “cracking” up Democratic regional strongholds into multiple districts, thereby causing an additional wasting of Democratic votes. Packing and cracking together go to make up the “efficiency gap” which shows “in a single number” that the Democrats wasted their votes in the 2014 election, for instance, 9.6 percent more than the Republicans.
Paradoxically, the Democrats’ brief does not go on to say exactly how many more seats the Democrats would have won under a fairer plan. The reason for that is they are keen to avoid being accused of demanding proportional election results by party—that is, “equal representation in government [for] equivalently sized groups,” quoting Vieth, a result that has always been rejected by all of the opinions, majority, concurring, or dissenting, in the three foundation cases of Bandemer, Vieth, and LULAC. It seems that the ball is being hidden here about this bedrock issue; for if “a single number,” as the Wisconsin Democrats allege, can be used to describe the problem of wrongful partisan asymmetry in legislative houses, then the actual number of elected Republicans and Democrats has to be citable as a solution to the problem.
Third, the Democrats argue that “the large and durable partisan asymmetry cannot be justified” by Wisconsin’s “political geography or efforts to comply with traditional redistricting criteria.” Wisconsin’s redistricting plan drawn up by Republicans stands out, the plaintiffs claim, both in Wisconsin history and across the country. “Sensitivity testing” showed that Democrats would have to win 54 percent of the statewide totals, as opposed to the 48 percent of the total they won in 2014, in order to control the state house. This makes the Republican advantage “durable.”
The major question in Bandemer, Vieth, and LULAC was whether political gerrymandering was a subject that could be dealt with under the Equal Protection Clause of the Fourteenth Amendment. As pointed out above, Justice Kennedy in Vieth basically recommended that if a workable and even technological/quantitative method of describing a violation could be discovered, that method would allow a backtracking into the Constitution. Taking that cue from Justice Kennedy, the Wisconsin Democrats’ brief asks the Court for but does not itself offer an “articulation of a standard whose precise contours are filled in through subsequent litigation.” That is, having vigorously pleaded the techniques for the finding of a constitutional violation, the Wisconsin Democrats do not propose a constitutional statement of the sought-after violation.
Since the Wisconsin state legislature immediately appealed the district court’s finding of a constitutional violation, the district court has not yet not had the opportunity to hear arguments about and define what the remedy for the violation should be. In the Supreme Court, the Wisconsin Democrats are not asking the Court for a declaration of the remedy but, again, for the constitutional principle upon which the district court could base a remedy.
What Our Politics Could Become
Overall, there are at least three issues or principles which have never been seriously considered in any of the “political gerrymandering” cases.
One is the simple political fact that candidates, not just political affiliations, matter. We seem to have just experienced an election which proves this point rather emphatically. The winning candidate for President was not only a newfound Republican but also was vehemently opposed by the Republican establishment. Likewise, Bernie Sanders, a longtime “democratic socialist” but now a newfound Democrat, was not the candidate of choice of the Democratic and Clinton establishment. Sanders’ surprisingly vigorous showing, as has been argued, severely damaged Hillary Clinton’s candidacy. The same point is also proved by the recent selection of Roy Moore as the Republican nominee for Senate in Alabama, despite the active opposition of a sitting Republican President and the multi-million-dollar funding of his opponent by national Republican groups. So, if candidates do matter, we might ask whether a factor in Wisconsin is the habitually deficient candidates of the Wisconsin Democratic Party.
Second, there is a contrary point about the role of the leadership of both major political parties. If the Supreme Court decides that political parties can be the victims of unconstitutional partisan bias, then inevitably political parties will be “parties” in the dozens of lawsuits to come. (In Gill, purportedly “individual” Democrats are suing, and the immediate defendants are officials of the Wisconsin Elections Commission.) And it will be up to those parties to, on the one hand, seek redress in court, and on the other, to defend themselves against the lawsuits of the other party. What that means is that party leaders, “the establishment,” will make all the substantive decisions in those lawsuits. Thus, “political gerrymandering” will cause a quantum and centralizing increase in the power of the leaders of the two major political parties.
Third, if there is a political party that needs the affirmative action of the courts, it is not the Republicans or the Democrats. According to the Gallup poll of American political party affiliation, the largest political party in the country is Independents. Gallup’s poll last month had Independents at 40 percent, Democrats at 30 percent, and Republicans at 29 percent. And this is a longstanding trend. With every precinct in the country keeping track of the number of voters who have registered as Independents, why should not Independents be included both in reapportionment plans and in reapportionment lawsuits?
Finally, despite the strong statements by the Wisconsin Democratic plaintiffs in Gill as well as by every Supreme Court justice who has ever written any kind of opinion on the subject of “political gerrymandering,” it offends not only the facts of these cases but common sense itself to deny that the inevitable result will be proportional representation by political party. In their Gill brief, the Wisconsin Democrats aver that “neither partisan bias nor the efficiency gap requires proportional representation.” But in her concurring opinion in Bandemer, Justice O’Connor stated the obvious: that other results “will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.”
For what are the plain and precise statements of the issue in these cases? The Gill plaintiffs plead their case thus: “In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while losing the statewide vote.” In Davis v. Bandemerer, the majority opinion described the factual basis of the suit by Indiana Democrats: “Overall the House races statewide, Democratic candidates received 51.9 % of the vote. Only 43 Democrats [out of 100] were elected to the House.” That is: the number of elected Republicans is disproportionate to their party’s total statewide votes. Proportionate representation is not only the obvious but also the only solution.
Lastly, with his particular interest in reapportionment cases—and especially his recommendation that these cases be reconceived in more expansive terms of “rights,” as, for instance, provided by the First Amendment—Justice Kennedy could well be the fifth and deciding vote in the creation of this new area of constitutional law.