Thomas Weil examines the Wisconsin partisan gerrymandering case, Gill v. Whitford, and the problems it causes to our democratic process.
One of the most significant cases, Gill v Whitfield, penetrates into the Wisconsin legislative map drawn in 2011 by the state’s Republican leadership giving partisan advantage to those in power regardless of the will of the voters.
Sen. John McCain : “Partisan gerrymandering has become a tool for powerful interests to distort the democratic process.”
The Case: Gill v. Whitford
This fall, the United States Supreme Court heard oral arguments in the case, Gill v. Whitford . Following the decennial elections of 2010, a redistricting plan was required for state and federal seats. In that election, Republicans had gained a majority of seats in the Wisconsin legislature. Working in secret, a redistricting plan was created and was passed by a party-line vote.
The effect was immediate. While often considered a swing state on many issues, in 2012 and 2014, while Democratic Party candidates received a majority of the votes for seats in the Assembly statewide, Republics won 60 of the 99 seats available.
In November 2016, in response to a suit filed in 2015, a three-judge federal panel ruled the redistricting plan unconstitutional and ordered the Wisconsin legislature to redraw the state assembly plan.
The federal court ruled the plan an unconstitutional, partisan gerrymander on the basis of two points: violation of the plaintiff’s First Amendment right to freedom of expression – what, as US Supreme Court Associate Justice Anthony Kennedy, in an earlier opinion on gerrymandering, in Vieth v Jubilier (2004), had said, the “First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.
In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.” The district court’s second objection to the Wisconsin redistricting was that it violated the Equal Protection clause of the 14th Amendment of the Constitution, wherein “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The US District Court for the Western District of Wisconsin ordered the state to remedy the gerrymander by November 1, 2017. The state of Wisconsin filed an appeal on February 24, 2017, asking the US Supreme Court to review the decision, which the latter agreed to do. Oral arguments were heard on October 3, 2017.
What is at risk?
Important issues for the democratic process – and its continued authority – are at stake.
While the oral arguments by the attorneys for the two parties, and the questions that the Supreme Court justice ask them, are interesting (as detailed in the transcript cited above), I think another set of arguments and lessons is equally intriguing.
A fascinating feature of our legal system is the amicus curiae or “friend of the court” brief. Dating back to Roman jurisprudence, this tradition allows an individual or group, not a party to the case, to bring relevant information to the court’s attention. The court has the discretion to admit the brief. At the level of the US Supreme Court, the amicus brief must cover vital and relevant material not dealt with by the parties in the case.
In Gill v. Whitford, there are at least 4 amicus briefs supporting Whitford et al, the party that sued the state of Wisconsin, which deserve special attention.
The first, from a collection of esteemed professors of history, law, and political science, reviews the historical and political concerns of our nation’s Founders as well as of the continuous rejection, since the founding, of the idea that partisan gerrymandering has been acceptable.
They note: “Having rejected and cast off the British notion of ‘virtual representation,’ Americans demanded a close correspondence between the sovereign people and their legislative assemblies. Americans were also concerned that legislative factions might entrench themselves in power, similar to forms of corruption that prevailed in ‘great Britain’s] Parliament.”
The Founders emphasized that the citizens were the “sovereigns,” not those chosen, intermittently and temporarily to represent their interests. And, further, the brief notes that from the time of the Federalist Papers to today, “any claim that partisan gerrymandering has been regarded as an acceptable characteristic of our democratic system is demonstrably ahistorical.”
Next, Heather Gerkin, Dean of the Yale Law School, and several colleagues respectfully request “this Court to do what it has done many times before. For generations, it has resolved cases involving elections and cases on which elections ride… by creating a workable principle, one that lends itself to a manageable test, while allowing the lower courts to work out the precise contours of that test with time and experience.”
This brief outlines several methods that would be accurate, precise, reliable, and reproducible, quantitatively fair and meaningful, including one that implements the concept of “partisan symmetry.” We have previously reviewed the work of one of the authors of this brief, Sam Wang of the Princeton Election Consortium
The last two amicus briefs are perhaps the most compelling. They come from elected officials themselves. One is from a bipartisan group of 65 current and former legislators (26 Republicans and 39 Democrats from 8 states that have suffered partisan gerrymandering since 2000. The other is by a bipartisan group of 34 current and former members of the US Congress (16 Republicans, 18 Democrats).
Collectively, they assert that partisan gerrymandering is a systemic tool used to shut out and silence an opposing party; that modern gerrymandering, which uses sophisticated computer modeling down to the voter household, has accelerated the process; that the effect of these more recent efforts has legitimized polarization and discouraged cooperation, since seats are ‘safe;” and that this has disenfranchised citizens who no longer can expect their representatives to listen to their concerns, especially if they are discordant with the small cadre of partisans within that elected official’s own party, who increasingly determine their fate in primaries, not the general election.
Why is this important?
As noted in the brief by the past and current members of Congress, since the framers of the Constitution “envisioned frequent, broad-based, competitive House elections that would create a relationship of ‘dependence’ and tie House members closer to the People,” and the goal of gerrymandering “is to undercut that tie in order to achieve a narrow partisan political result.” They conclude that, in spite of their deep respect for the separation of powers and their sympathy for the Supreme Court’s reluctance to enter this arena, they are compelled to ask, plaintively:
“But in light of the constitutional principle that animate our role as Members of the House and the grave threat that hyper-partisanship poses to our Republic, we need constitutional ground rules that ensure basic standards of fairness and broad-based competition, without subjecting the districting process to free-form judicial second-guessing.
“What our political system needs now – what the problem of extreme partisan gerrymandering needs now – are basic boundaries so that our parties may begin to correct course and mend the broken parts of our political process. This Court should give the Nation that chance.”
We believe, too, that the Supreme Court should listen carefully to friends such as these. And, reflect carefully that one of its members, Justice Kennedy (in a previous gerrymandering case) has noted, wisely, that: “the ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself.”
In a gerrymandered society, our representatives have little incentive to represent us, to reach out to members of the opposite party, or to handle intractable or even difficult problems.
We need the Supreme Court to again give meaning to the idea that one citizen, one vote has meaning – to put a stop to polarization and to restore the principle that the People are the sovereigns in our country.
Read also: Let’s Put A Stake Through The Heart Of The Gerrymander