Symposium: Bringing Whitford into focus

Thomas P. Wolf is counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.

Even before the Supreme Court announced that it would hear oral argument in Gill v. Whitford, a conventional wisdom of sorts about the case had settled in: This case would be one of the most important of the court’s appeals for the October 2017 term and perhaps one of the most significant democracy cases in a decade or more. It would either be an opportunity for the court to rid us once and for all of the scourge of partisan gerrymandering in all its forms, or end for all time the search for a partisan-gerrymandering cause of action.

This case will be important, no doubt. But, in reality, the challenge it presents the Supreme Court is a much more modest one.

Far from being a referendum on the American redistricting process writ large, this case asks the Supreme Court to weigh in on the constitutionality of one specific type of gerrymandering: a political party’s use of the redistricting process to net and entrench an unbreakable legislative majority that it couldn’t command without extreme manipulations of the electoral map. (This is the type of abuse a majority of the court seemed to have in mind in 2015 when, in Arizona State Legislature v. Ariz. Independent Redistricting Commission, it described “partisan gerrymandering” as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”)

An extreme, seat-maximizing gerrymander is exactly what occurred in Wisconsin. In 2010, Wisconsin Republicans won fortuitous majorities in the fall elections. They then used that control to create a map for state assembly elections that would guarantee them large legislative majorities even with a minority of the statewide vote, and, crucially, deny their Democratic opponents the same opportunity. They did this intentionally. And they succeeded. Consultants and legislative aides – supervised by the leaders of the state’s Republican caucus – worked away in an off-site “map room” to engineer maps with the aid of sophisticated social-science techniques. Legislative Democrats were entirely excluded from the mapping process. Even rank-and-file Republicans were largely left in the dark, shown only information relating to their specific districts and only after signing nondisclosure agreements. The maps were then rapidly pushed through both houses of the legislature and signed into law by the state’s Republican governor.

By cementing in majorities – or sometimes even supermajorities – that allow lawmakers to pursue their agendas without regard for the changing tide of public opinion, these extreme gerrymanders rob voters of their right to accountable legislatures. When states like Wisconsin or North Carolina, which have vibrant political cultures that frequently produce close statewide elections and switches in party control of statewide seats, are locked into the same legislative slates dominated by one party, voters also lose their right to a representative government. And when mapmakers intentionally use political data to create these kinds of maps – disadvantaging voters on the basis of their political expression and affiliation and undercutting their ability to aggregate their votes to elect legislators of their choice – they likewise undermine the First and 14th Amendments.

The good news is that targeting the kind of extreme gerrymandering at issue in this case doesn’t carry the threat of judicial intervention into maps everywhere. Extreme gerrymandering is a problem in only a handful of states at the congressional level, and under a dozen at the state legislative level. Under these circumstances, any fear of a flood of new redistricting litigation isn’t a viable reason – let alone an excuse – for courts to do nothing. Instead, it’s an incentive to define the problem being addressed clearly and vet the elements of a constitutional offense rigorously.

Crucially, courts don’t need to rely on social science to police extreme maps. The district court in this case didn’t. The various metrics that academics have developed and litigants are now deploying frequently correlate with observable, objective, real-world factors. Courts could easily apply these factors to place meaningful limits on partisan gerrymandering (and partisan-gerrymandering causes of action). The list of these factors is potentially long, but a few stand out as particularly administrable and useful for limiting the total number of maps that would be subject to constitutional challenge. And the Supreme Court would have broad latitude to figure out how, exactly, to factor these into its doctrine.

The most important factors are single-party control of the redistricting process and a recent history of close – or increasingly close – statewide elections. When both of these factors are present – as they are in Wisconsin – a party is more likely to attempt to entrench itself and that attempt is more likely to work. Think of it as a kind of “motive and opportunity” analysis. When statewide elections aren’t close, the party in control of the redistricting process isn’t likely to feel the status anxiety necessary to justify complicated redistricting machinations. (The state probably also won’t have the kind of political geography necessary for the party to eke out a large number of the close seats that create bias.) Politics as usual should naturally produce the outcomes the party wants. Similarly, a party will likely only be able to force through an extreme gerrymander when the other parties don’t have some procedural check on the process. If opposition parties can veto the worst gerrymanders, courts can feel comfortable that normal politics will have weeded out deeply biased maps.

Other readily identifiable and objective evidence of entrenchment could also be helpful for flagging the worst maps. Chief among these are deviations from normal districting processes, including excessive secrecy or speed. We saw these irregularities in spades during Wisconsin’s redistricting process. If redistricting proceeds relatively deliberately and transparently, maps are likely to be less biased and courts need be less concerned that the map-drawers overrode normal politics to get their way.

Contemporary social-science metrics for measuring partisan symmetry in maps – which have become more sophisticated since the Supreme Court last considered partisan gerrymandering in the mid-2000s – can also help the courts identify situations in which something is likely awry and needs closer examination. These metrics are one set of tools among many the courts have at their disposal, much as doctors have an array of techniques for diagnosing illnesses, such as lab tests, physical exams and patient interviews. They can provide both map-drawers and prospective plaintiffs with some ex ante guidance as to which maps might be constitutionally infirm. The deeper methodological differences among the leading metrics aside, they converge remarkably frequently on the same small sets of extremely biased plans. Additional statistical applications and simulated alternative mapping programs provide extra layers of defense against meritless claims by helping courts identify statistically significant bias and filter out the effects — if any — of residential clustering on structural inequalities in voters’ ability to convert votes into seats.

A Supreme Court that defined the problem of partisan gerrymandering and its solution in the limited way sketched out here would be able to box out the worst kinds of redistricting abuses in a manageable and discernible manner, primarily by establishing the outer bounds of constitutional behavior. States would still have substantial latitude within these bounds to run their redistricting processes as they saw fit and would be able to make nuanced choices from among many possible map configurations without fear of judicial interference. If the social science is any indication, most already do so without generating bad maps.

Partisan gerrymandering is a major problem in many of its forms. But in considering Gill v. Whitford, the Supreme Court should think smaller, focusing on the particular problem of Wisconsin’s extreme map. Everything follows from that.