Democrats seek proportional representation
By Richard Moore, The Lakeland Times
In a case that will almost certainly shape the future of political redistricting nationwide, the U.S. Supreme Court this week accepted Wisconsin's request to review last year's appeals court decision striking down the state's Assembly district maps as products of unconstitutional partisan gerrymandering.
In a separate but parallel decision, the high court blocked on a 5-4 vote an appellate order in the Western District of Wisconsin for the state to draw new districts by Nov. 1 of this year.
The state had lost the gerrymander case 2-1 before a three-judge appellate panel, and attorney general Brad Schimel appealed to the Supreme Court earlier this year. Schimel said he was ecstatic the court would hear the case, Gill v. Whitford.
"I am thrilled the Supreme Court has granted our request to review the redistricting decision and that Wisconsin will have an opportunity to defend its redistricting process," Schimel said. "As I have said before, our redistricting process was entirely lawful and constitutional, and the district court should be reversed."
Schimel also praised the granting of the stay for the deadline to redraw maps.
"The stay is particularly important because it preserves the Legislature's time, effort, and resources while this case is pending," he said. "In our stay application, I argued that requiring the Legislature to re-draw district maps this year would have been a waste of resources. I also argued that it was likely that the lower court's decision would be eventually overturned. I am pleased that the court granted our request on this important issue."
There were warning signs that Democrats who have pushed for the maps to be invalidated and redrawn could lose when the higher court hears the case. For one thing, the 5-4 vote against the Nov. 1 deadline would almost certainly preclude new maps for the 2018 elections, indicating the five justices may not see the need to alter them at all.
Perhaps more important, in laying out the issues to be decided, the court said one of the issues was to consider whether the district court violated precedent in Vieth v. Jubelirer when it held that Wisconsin's redistricting plan was an impermissible gerrymander, even though it was undisputed that the plan complied with traditional redistricting principles.
It might seem a stretch to toss traditional redistricting principles that have not been discarded in previous decisions. More than that, the justices said another issue was whether gerrymander cases are even justiciable, or subject to the court's jurisdiction.
In Vieth v. Jubelirer, four justices concluded that political gerrymandering claims are nonjusticiable because, they wrote, no judicially discernible and manageable standards for adjudicating such claims exist.
On the other hand, the door is open for the court to step in, because the fifth justice in that decision's majority, Anthony Kennedy, though he joined in dismissing the gerrymandering complaint before the court, argued that the court should not foreclose all possibility of judicial relief because a limited and precise rationale could conceivably still be found to correct an established constitutional violation.
Thus no high-court majority has ruled partisan gerrymandering to be nonjusticiable, and the court could find that Kennedy's elusive standard might exist in the complainants' arguments.
Other issues the court said it will address in the litigation - which will likely be heard late this year and decided some time next year - include whether the district court violated Vieth when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; and whether the defendants are entitled to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed.
Conservative, liberal reaction
Republicans and conservatives were overjoyed by the court's acceptance of the case, obviously, for without the court's actions the state would have had to redraw the maps, which heavily favor Republicans, by Nov. 1.
In a joint statement, Senate majority leader Scott Fitzgerald (R-Juneau) and Assembly speaker Robin Vos (R-Rochester) said they were buoyed by the news.
"We are encouraged by the decision by the Supreme Court to hear Wisconsin's appeal of Gill v. Whitford and grant a stay of the lower court's order," Fitzgerald and Vos said. "Wisconsin lawmakers have maintained that our state's redistricting process and legislative maps are legal and constitutional, and we look forward to the court's final decision which we are confident will affirm our position."
Over at the Wisconsin Institute for Law & Liberty, which filed an amicus brief urging the court to take the case, president Rick Esenberg said it was really the defendants who were asking for a gerrymander by the courts.
"In this case, what the plaintiffs have effectively asked the court to do is gerrymander in favor of competitiveness, that is, to draw maps that compensate for the fact that Democrat voters tend to be more geographically concentrated," Esenberg said. "That's a political judgment the court has repeatedly recognized as nonjusticiable."
Esenberg cited the appellate court's dissenting opinion that the current maps actually preserve traditional redistricting principles.
"As judge (William) Griesbach noted in his dissent in Gill, the remarkable thing about the case is that these allegedly gerrymandered maps actually respect all traditional redistricting principles," Esenberg said. "We are confident the Supreme Court, as it has in the past, will decline to insert the judiciary into political questions on whether or not to make up whatever natural disadvantage these maps may confer."
Liberals and Democrats were trying to put on the best face possible, for they would have won outright had the high court refused to review the case. Assembly Democratic leader Peter Barca (D-Kenosha) talked about silver linings.
"Last year, a federal court agreed with the plaintiffs that Wisconsin had one of the worst cases of partisan gerrymandering in the country," Barca said. "Rather than redraw the maps like the court ordered, Wisconsin Republicans continue to waste taxpayer dollars on very expensive private attorneys to fight these unconstitutional maps."
And that silver lining?
"Now that the Supreme Court has decided to hear the case, there could be a precedent set to end extreme partisan gerrymandering," he said. "Voters should be able to choose their representatives, not the other way around, and I have faith that the Supreme Court will do the right thing to help end the terrible polarization we see in both Wisconsin and across America."
State Rep. Katrina Shankland (D-Stevens Point) focused on the bigger picture.
"I'm very happy that the U.S. Supreme Court will rule on this case, and am hopeful that they will come to the same conclusion that the lower courts already have - that Republicans purposely gerrymandered Wisconsin's legislative districts to rig the game in their favor by lowering the impact of Democratic votes," Shankland said. "Doing so would send a message to the entire nation, where gerrymandered districts have unfairly tipped election results in dozens of states. A favorable U.S. Supreme Court ruling would affect the future of our elections monumentally - we would have fair districts, accountable government, and effective representation."
The liberal group One Wisconsin Now accused Republicans of pursuing appeals for their own self-interest, not to serve the cause of electoral fairness.
"Wisconsin Republicans have put their own political interests before everything else with their manipulation of the rules on voting to give themselves an unfair partisan advantage," One Wisconsin Now research director Jenni Dye said. "They've passed state laws to rig legislative district lines and erect barriers to the ballot box for people they don't think will vote for them. Their pursuit of raw political power and unfair partisan advantage undermines the integrity of our elections and shakes the foundations of our democracy."
Dye said a federal court had already ruled that the GOP's partisan gerrymandering has put them in violation of not just basic fairness but of the United States Constitution and ordered new maps.
"But instead of serving the people of the state and drawing fair voting maps, Republicans have continued legal appeals in this case and others to try to protect themselves," she said. "They've shown time and again that they can't be trusted to put what's best for our democracy before their narrow partisan political interests, and now the U.S. Supreme Court will consider if they've violated the provisions of our nation's constitution."
Sachin Chheda, director of the Fair Elections Project, said the group had mixed feelings.
"We are disappointed in today's decision to stay the trial court interim remedy order, but we are still confident that the verdict will be upheld," Chheda said. "In the recently concluded Covington case, the interim order was stayed, yet in the end, the plaintiffs won unanimously on the merits. We hope the Whitford case moves quickly so the maps can still be redrawn in time for a fair election to be held in 2018."
What's at stake
The case challenges the very idea that district boundaries should encompass organic, cohesive communities as much as possible, as defined by compactness, contiguity, the preservation of political subdivisions, and the preservation of communities of interest.
To Democrats, Republicans drew maps so skewed that too many districts have simply become uncompetitive for Democrats. And they say they have a way to prove it - a so-called efficiency gap they say shows there are way more Democratic voters in Wisconsin than representatives.
The appeals court agreed.
"We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats," the decision stated. "Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect. Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest."
For example, in 2012, Democrats got more aggregate Assembly votes statewide than Republicans, but Republicans won 60 of 99 district elections.
The majority decision by judges Barbara Crabb and Kenneth Ripple essentially accepted a new formula for determining whether districts have been unconstitutionally gerrymandered. The efficiency gap measures the number of wasted votes for each party, that is, under the formula, votes cast for losing candidates do not help to generate seats and are thus wasted, while votes cast for winning candidates in excess of 50 percent plus one aren't needed and so are likewise considered wasted.
Wasted votes build up when voters are "packed" into certain districts so the winning candidate does so by a large margin and by "cracking" a party's voters, or distributing them across districts in such a way that the party is unable to win in any of them, the decision stated.
Using that calculation, a party's wasted votes are tallied statewide. Dividing that number by the total number of votes yields the party's wasted vote ratio; comparing the ratios of each party yields the efficiency gap between them.
Simply put, if the efficiency gap is too big, gerrymandering is taking place. And that's what was happening in Wisconsin, the appeals court decision stated.
The experts, according to the court, believe an efficiency gap of more than 7 percent will favor the prevailing party for the entire life span of the plan. In Wisconsin, in 2012 and 2014, the experts found efficiency gaps averaging between 10 and 13 percent.
Looked at another way, the efficiency gap can be viewed as a measure of the proportion of "excess" seats that a party secured in an election beyond what the party would be expected to obtain with a given share of the vote, the decision stated. Based on decades of observed historical data, the majority wrote, the parties' experts agreed that with a single-member, simple-plurality system like Wisconsin's, for every 1 percent increase in a party's vote share, its seat share should increase by roughly 2 percent.
"Thus, a party that gets 52 percent of the statewide vote should be expected to secure 54 percent of the legislative seats," the decision stated. "If the party instead translates its 52 percent of the vote into 58 percent of the seats, the district plan has demonstrated an EG of 4 percent in favor of that party (the difference between the expected seat share and the actual seat share)."
Again, the experts found an efficiency gap averaging between 10 and 13 percent in 2012 and 2014.
It was all decidedly complex as well as formulaic, but dissenting judge William Griesbach said all the calculations boiled down to a cry for statewide proportionality, rather than on contiguity and preserving communities of interest, and the constitution doesn't guarantee proportionality.
"Whether the argument is premised on the efficiency gap or on other measures comparing legislative seats to statewide votes, it is clear that the plaintiffs' case is really premised on a right to proportional representation, that is, the right to translate one party's statewide vote totals into a given number of seats in the Legislature," Griesbach wrote. "If Party A has a large statewide total of votes, say 60 percent, but has only received 51 percent of the seats, there is a large efficiency gap reflecting the disproportionality of that party's representation: the number of seats they won was disproportionally small compared to their statewide vote totals. Any injury premised on such a comparison is an injury based on an absence of proportionality."
But again, he wrote, there is no constitutional requirement that groups of voters must enjoy political strength proportionate to their numbers.
"The Bandemer court recognized that 'the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm,'" he wrote. "Our cases ... clearly foreclose any claim that the constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be."
Gerrymandering by court order
Other critics have also argued that the efficiency gap is a novel and flawed concept. Esenberg in particular has argued against its premises. When the appeals court ran with it, he called the decision a substantial departure from past judicial practice.
"It invalidates a plan which, by the majority's own admission, comports with traditional districting principles," Esenberg said then. "It does so on the basis of no more than the commonplace observation that the majority party sought to maximize its chances and that it might have been possible to rig the plan in a way that would have made the outcomes of individual races closer to the aggregated statewide vote. But, in America, we elect legislators by district and not statewide votes."
In a country where Democratic voters tend to be less geographically dispersed, Esenberg said, the lack of proportionality between how many votes all Democrats obtained statewide and how many seats the Democrats win is to be expected.
"It is not a sign of unfairness but a product of the fact that we use geographic districts to elect our legislators," he said.
In February, when the appeals panel ordered the state to draw new district maps by Nov. 1, Esenberg again critiqued the concept, saying the efficiency gap actually compels gerrymandering to relieve one party of its natural disadvantage. The legal problem was, Esenberg said, while the court expressed concern that legislators intended to draw maps that maximized the advantages of the majority, its decision effectively requires that the Legislature act in a partisan fashion.
"The majority ruled that in addition to meeting the long-standing constitutional requirements that have traditionally governed the districting process, such as contiguity, compactness and respect for political subdivisions like counties and cities, it must also avoid an unacceptably large 'efficiency gap' - a loaded term that means nothing more than the difference between the outcome of all the individual legislative races and an aggregate of the partisan vote in all of these races," he said. "But there is no reason to believe that the result of all of the individual races will match the statewide partisan vote and many reasons - such as the greater geographic concentration of voters of one party - to believe it will not."
In practical terms, Esenberg said, since legislators always "know" and even "intend" the partisan impact of their maps, the decision means that the Legislature must engage in actual gerrymandering if it is necessary to spread out partisan voters more evenly between districts.
"Even if districts look nothing like those normally considered to be 'gerrymandered' based upon unusual shapes (lack of compactness and contiguity) the majority decision means, in effect, that they must be gerrymandered for competitiveness which, in this case, means relieving the Democrats of at least some of the natural disadvantage that stems from the fact that their voters are much more geographically concentrated," he said.