Is there an articulable standard for regulate partisan gerrymandering?1
Vieth v. Jubelirer (2004) was 4-opinon plurality opinion that held that partisan gerrymandering cases are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. Justice Kennedy concurred in the judgment, but wrote separately to say that there could be a future case where parties could develop an articulable standard to determine whether partisan gerrymandering is constitutional.
In this case, Western District of Washington 3-judge court held in a 159-page opinion that the Wisconsin Republican controlled legislature had drawn maps intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Using this map, the GOP won 48% of the vote, yet won 61% of the seats available.
The standard the lower court used as called the “efficiency gap.” Or, if you’re Chief Justice Roberts, you call it “sociological gobbledygook.” The efficiency gap measures how much vote dilution and vote packing there is in a state.
It’s calculated by taking the two parties wasted votes divided by the total number of votes cast. The creators of the efficiency gap argue that if the gap is greater than 8%, then gerrymandering has caused too many people to have no say in the election. The Plaintiffs in Wisconsin (Whitford, et al) had their experts randomly draw 200 computer generated maps that comply with all other the applicable rules (contiguous districts, same population in all districts, etc) and compared it to the Wisconsin map:
This case may be difficult to predict because are several questions presented at the Supreme Court:
- Did the district court violate Vieth v. Jubelirer, 541 U.S. 267 (2004), 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?
- Did the district court violate Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles?
- Did the district court violate Vieth by adopting a watered-down version of the partisan- gerrymandering test employed by the plurality in Davis v. Bandemer, 478 U.S. 109 (1986)?
- Are Defendants entitled, at a minimum, 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?
- Are partisan-gerrymandering claims justiciable?
TJ thinks it will be 5-4 for Whitford, but affirmed in part and reversed in part. The Court will likely find that these partisan-gerrymandering claims are justifiable, but will refine how to bring such a claim.
Ruchit: No test will be articulated.