Packing and cracking: The Supreme Court takes up partisan gerrymandering

On October 3, the second day of the new term, the U.S. Supreme Court will hear a case that likely poses the most momentous question on its docket: Should it, for the first time in history, strike down a state’s electoral map on the grounds of partisan gerrymandering?

Gerrymandering — a term coined in 1813 to describe a practice that goes back to Colonial times —refers to the intentional drawing of electoral district boundaries in ways that stack the deck in favor of one party’s candidates, entrenching that party’s control for multiple elections to come, even if the party loses majority support in the interim. In the upcoming case, Gill v. Whitford, the alleged gerrymanderers are the Republicans, and the body is the Wisconsin State Assembly, where, in 2012, GOP candidates won a supermajority of seats while winning fewer than half the total votes.

Because state legislatures also draw electoral districts for the U.S. House of Representatives, gerrymandering impacts that body too. After the same round of redistrictings that led to the Gill lawsuit, the Republican Party won a 33-seat majority in the 2012 races, even though Democratic candidates outpolled Republicans by more than one million votes. The bias embedded in those redistrictings still overshadows the upcoming 2018 midterms. In addition, the caustic hyperpartisanship that characterizes national politics is at least in part a result of gerrymandering, which creates a plethora of safe seats for incumbents of both parties. Those representatives have disincentives to work across the aisle, lest the more extreme factions of their own party field a candidate to challenge them in the primaries — increasingly the only remaining contested elections.

With the upcoming 2020 census — the event that will trigger the next round of electoral map redrawing — the stakes of the case could not be higher.

“it’s critical that the court act now,” says Michael Li, a senior attorney with the Brennan Center for Justice at New York University School of Law, which studies elections law. “If it doesn’t, ‘Big Data’ and technology are about to make things much worse. While the current beneficiaries of extreme gerrymandering are congressional Republicans, this case isn’t about Republicans or Democrats.”

In Gill, a group of Democratic voters challenged Republican-controlled redistricting in Wisconsin in 2011. In 2012, under the new map, Republican candidates for the state assembly garnered a minority, 48.6%, of the total votes cast, yet won a supermajority of seats — 60 out of 99. In contrast, Democrats would have had to capture 54% of the statewide vote — a once-in-a-generation landslide, by Wisconsin standards — in order to come away with even a simple majority, according to evidence presented at trial in May 2016.

A three-judge federal district court in Madison, voting 2-1, struck down the plan last November, finding that it intentionally discriminated against Democratic voters on the basis of their political viewpoints in violation of their free speech rights under the First Amendment and their equal protection rights under the Fourteenth.

Though the Supreme Court has invalidated racially motivated gerrymanders, it has repeatedly refused to strike down purely political ones — even while recognizing that the practice was pernicious. In its 2004 ruling in Vieth v. Jubilerer, where the court, by a 5-4 vote, declined to intervene in a partisan gerrymandering case from Pennsylvania, every justice agreed that such machinations were “incompatible” with “democratic principles” and that “excessive injection of politics” into redistricting was “unlawful.”

Yet historically, the court has declined to wade into the inherently political quagmire of district mapping. “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” wrote Justice Anthony Kennedy in his concurring opinion in Vieth.

Whether the Court — and especially Kennedy, who was the swing vote in Vieth — will now reverse tack in the upcoming case, will likely hinge on whether, in its view, advances in technology have changed the landscape since Vieth.

“Partisan gerrymanders have become more common, more severe, and more durable in their effects since this court last considered their constitutionality more than a decade ago,” argues attorney Paul Smith in a brief for William Whitford and the 11 other voters challenging the redistricting. “This is the product of better map-drawing technology utilizing more sophisticated voter data about an increasingly polarized electorate.” Smith, who argued the unsuccessful voter challenge in Vieth, will also argue next month’s case.

Fortunately, technological advances cut both ways, Smith will argue. There are now objective, mathematical metrics that judges can use to decide whether a legislative map is unconstitutionally partisan, he maintains. In the past, the court has cited the absence of such tools as the basis for its refusal to intervene in partisan gerrymandering cases. While the court has not hesitated to strike down racial gerrymanders — reasoning that judges can easily determine whether one impermissible factor, race, played a role — it has found no principled basis for condemning partisan gerrymanders, where judges are asked to divine when an intrinsically political process becomes too political.

Smith and many of the outside organizations and individuals supporting his clients’ position — about 30 amicus briefs have been filed supporting the plaintiffs — insist that neutral tools for drawing that line do now exist, and that the lower court relied on several.

But Wisconsin Solicitor General Mischa Tseytlin, defending the 2011 redistricting, argues in his brief that the lower court based its decision on the same “social-science hodge-podge” and “cherry-picked metrics” that the court has repeatedly rebuffed in the past. Tseytlin represents Wisconsin elections commissioner Beverly R. Gill and five other defendant state officials.

If the court were to strike down Wisconsin’s map, claims the Republican State Leadership Committee in an amicus brief — one of 14 filed in support of Wisconsin — it would “politicize the courts and … go far beyond intervention in the political thicket; it would impale the judiciary on its thorns.”

U.S. congressional seats are reapportioned after each decennial census. Reapportionment often requires redistricting at the state level. If a single political party can win control of all levels of a state government in time to command that process, it has the opportunity to gerrymander. Historically, both parties have gerrymandered when given the chance.

Recognizing an opportunity in early 2010, the Republican State Leadership Committee set up the Redistricting Majority Project (REDMAP) to try to win Republican control of state legislatures in key battleground states. In March 2010, Republican strategist Karl Rove stressed the importance of the group’s work in a Wall Street Journal article subtitled, “He Who Controls Redistricting Can Control Congress.” Redistricting in a few states, including Wisconsin, he wrote, could “determine which party controls upwards of 20 seats” in the U.S. House of Representatives.

Nationally, Republicans won big in the 2010 midterms — the election then President Barack Obama called a “shellacking.” In Wisconsin, Republicans won control of the statehouse for the first time in more than 40 years. Its leadership then tasked a private law firm, in consultation with a political scientist, to select the new electoral map. In a secretive process, computer simulations were run of voting outcomes under different mapping scenarios, the district court later found. The goal was to maximize the number of seats that Republicans could capture with even a minority of votes, according to the court.

The manipulations employed standard gerrymandering techniques, known as packing and cracking. Packing means massing the bulk of the opposing party’s voters into a very few districts, which are effectively conceded to opposing party candidates. Cracking means dispersing the rest of the opposing party’s voters into the remaining districts, where they are expected to be a permanent minority. By creating many more cracked districts than packed districts, the party in charge of redistricting hopes to achieve enduring control of the legislative body.

After the final map was selected and submitted to the legislature for passage, one of its drafters told the Republican caucus, “The maps we pass will determine who’s here 10 years from now.”

Most observers believe the plaintiffs face an uphill battle at the Supreme Court. The roadblock is the legal concept known as “justiciability.” Under longstanding precedent, federal courts decline to decide inherently political questions — called nonjusticiable — on the grounds that judges have no principled basis for doing so, and that such matters are best left to the elected branches of government.

In Vieth, the four liberal-leaning justices voted to strike down the Pennsylvania redistricting plan. The four most liberal justices today are expected to do the same in Gill.

The four most conservative justices, on the other hand, found that partisan gerrymandering disputes were nonjusticiable. The late Justice Antonin Scalia, writing for that faction, explained that “the Constitution clearly contemplates districting by political entities,” so some degree of political calculation in the process was inevitable and permissible. For this reason, courts lacked “judicially discoverable and manageable standards for resolving” allegations of unconstitutional partisan gerrymandering.

Crucially, Justice Kennedy joined neither faction in Vieth. His separate opinion defines the narrow opening through which the Gill plaintiffs must try to squeeze. While Kennedy agreed with Scalia that the plaintiffs in Vieth had presented no neutral standard for deciding the case, Kennedy left open the possibility that, in the future, some other challenger might succeed in doing so.

The prospect of technological change lay at the heart of his reasoning. “Technology is both a threat and a promise,” he wrote. “On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand,” he continued, “these new technologies may produce new methods of analysis” that could “facilitate court efforts to identify and remedy” severe gerrymandering.

To prevail, then, it seems that the plaintiffs must convince Kennedy (or, perhaps, Chief Justice John Roberts Jr., who was not on the Vieth court) that he was right on both scores.

The first challenge is the easier of the two to meet. “There is compelling evidence,” assert political scientists Bernard Grofman and Ronald Keith Gaddie in their amicus brief, “that the 2010 redistricting cycle yielded partisan gerrymandering of a magnitude that is qualitatively and quantitatively different from what we have seen in the past — as much as three times more partisan bias than in the 2000 redistricting cycle.”

As for the tougher part — proving that neutral analytical tools are now available — the plaintiffs relied at trial on a family of statistical analyses called partisan-symmetry tests, which many of the amici supporting the plaintiffs have also endorsed.

“Partisan symmetry is simple to define,” writes Yale Law School Dean Heather Gerken in a brief she co-authored on behalf of herself — she is an elections-law scholar — and four experts in the quantitative analysis of elections. “A set of districts are symmetrical when reversing the outcome of the election —flipping each party’s average district vote totals — would also reverse the number of seats won.”

Here’s what that means and doesn’t mean. Importantly, partisan-symmetry tests do not require that votes and outcomes be proportional — a notion that the court has rejected in the past. They do not require, for instance, that if one party wins 51% of the electorate, it must also win about 51% of the assembly seats. What these tests do say is that if a 51% Republican victory translates into, say, a 60% Republican majority in the legislature, a 51% Democratic victory should also translate into an at least roughly comparable Democratic majority. This was clearly not the case in Wisconsin.

“Partisan symmetry has near universal support within social science and has withstood robust testing,” Gerken writes in an email to Yahoo.

But the availability of partisan-symmetry tests was brought to the court’s attention once before — albeit cursorily — in a 2006 gerrymandering case, and the majority at that time, including Kennedy, were unswayed. In addition, Wisconsin Solicitor General Tseytlin mocks the particular species of partisan-symmetry test that the plaintiffs focused upon at trial, claiming that it “would find that one out of every three legislative maps drawn in the last 45 years has impermissible partisan effect.” (The plaintiffs contest that claim.)

Ultimately, if the challengers can’t win over Kennedy with their technology-based arguments, they might yet have one last hope.

That one stems from the opposite of technology: the human condition and its corollary, mortality. Kennedy is now 81. There has been frequent and widespread speculation about his impending retirement. A landmark condemnation of partisan gerrymandering would become part of his legacy. This may be his last chance to write it.

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