Symposium: Gill v. Whitford as bad theater

Tyler Green is the solicitor general of Utah. Utah is one of 16 states that joined a merits-stage amicus curiae brief by the state of Texas in support of the appellants defending Wisconsins electoral map.

Attorneys who advise state elected officials need no crystal ball to see what an affirmance in Gill v. Whitford would mean for their clients. …

GILLS REAL DEAL

A Play in Three Acts

Cast of Characters

Speaker of the Utah House: A woman in her early 50s; a recovering lawyer.

President of the Utah Senate: A man in his mid-60s; a retired medical doctor.

Legislative Counsel: A woman in her late 40s.

Scene

The Utah State Capitol.

Time

Early 2021, after the U.S. Census Bureau releases the 2020 census results.

ACT I

Scene 1

SETTING: We are in a large conference room at the capitol. Stacks of paper cover the main table. Foamboard charts rest on easels and against the walls. Beverages and a box of doughnuts sit on a side table.

AT RISE: LEGISLATIVE COUNSEL sits at the main tables long side, facing the rooms door (which is closed). She alternately checks her watch and responds to texts or emails on her cell phone. COUNSEL raises her head as the SPEAKER OF THE HOUSE and the PRESIDENT OF THE SENATE open the door and enter.

SPEAKER

Good morning. Sorry were lateagain.

COUNSEL

(She stands and shakes hands with the SPEAKER and the PRESIDENT.)

No problem. I just got the text that your caucus meeting ran long.

PRESIDENT

Yes. We moved through the caucus agenda as fast as we could, but the members had lots of questions about the redistricting process.

COUNSEL

I understand.

(She motions to the side table.)

Snacks or a drink?

PRESIDENT

Thanks. I need a blood-sugar boost after that meeting.

(All three walk to the side table and take turns getting doughnuts and drinks.)

SPEAKER

(She talks while getting food and walking to her seat at the main table.)

Picking up where the president left offone of the first questions at caucus was how were going to start drawing new boundaries. Some members suggested tweaking the current map based on the 2020 data. But other members said we cant do that because of a new Supreme Court case. Are they right?

COUNSEL

(Returning to her seat, food in hand.)

Im afraid so. Actually, its a 2018 case called Gill v. Whitford. This is the first time weve redistricted since then.

PRESIDENT

(Seated at the table.)

The court said we cant use our old map?

COUNSEL

Well, the court didnt expressly prohibit states from basing new boundaries on old ones. But in a state like Utah, the opinion unquestionably has that effectwe have to start from scratch.

SPEAKER

Whats wrong with our current maps boundaries?

COUNSEL

They produce too many Republican legislators.

PRESIDENT

(With his mouth full of doughnut.)

Say again?

COUNSEL

Its true. Under the courts opinion, the new boundaries must give more legislative seats to Democrats.

SPEAKER

How can the court tell states the correct number of legislative seats for each political party? I thought elections did that.

COUNSEL

Youd think so, right? Au contraire, says the court.

(She hands papers to the SPEAKER and the PRESIDENT.)

Its actually a little complicated. Here are copies of the opinion. Ive highlighted the key parts.

PRESIDENT

(Drops papers on table.)

After that caucus, I cant handle this lawyer-speak. Whats the punchline? How could the court have reached this result?

COUNSEL

Heres the quick version. In 2011, Wisconsins legislature drew new districts based on the 2010 census. After the 2012 and 2014 elections, the Democratic Party in Wisconsin was mad because its candidates won fewer of the new districts than the party thought they deserved based on the number of statewide votes for Democrats.

SPEAKER

So this is a proportionality issuethe idea that if a political party gets 40 percent of statewide votes for legislative candidates, it should win a corresponding 40 percent of legislative seats.

COUNSEL

Correct. But things didnt pan out that way for Wisconsins Democrats. In 2012, Republicans won 60 of 99 seats in the Wisconsin State Assembly with 48.6 percent of the statewide two-party vote. And in 2014, Republicans won 63 of 99 seats with 52 percent of the statewide vote. Seeing those results, some Democrats in Wisconsin sued. A federal district court declared Wisconsins new district boundaries unconstitutional. The Supreme Court agreed.

PRESIDENT

Unconstitutional on what basis?

COUNSEL

The court said the election results in the new districts violated the Democratic Partys rights under the equal protection clause.

SPEAKER

Hold on. The political partys right to equal protection? Doesnt the equal protection clause protect the rights of individualsnot the rights of groups?

COUNSEL

Thats exactly what prior Supreme Court redistricting cases said. Its one reason Gill is such a sea change: Its the first redistricting case extending equal protection rights to a group.

SPEAKER

Do other groupssuch as groups of racial minoritiesalso now have those same equal protection rights in redistricting cases?

COUNSEL

No. At least, not yet. Race-based claims werent raised in Gill.

PRESIDENT

So political partiesgroups that exist to win executive or legislative seats from voters in electionsnow have a constitutional right to get a certain number of legislative seats in court from a federal judge? And groups of racial minorities dont have that right?

COUNSEL

Correct on both counts. The opinion also makes redistricting challenges easier. Before Gill, a plaintiff claiming that a new district violated his equal protection rights could challenge only his individual district. But Gill allowed the plaintiffs to challenge the entire statewide plan.

SPEAKER

Did the Supreme Court realize the incentives it created by allowing challenges to a states entire redistricting plan? Or how much more expensive it will be for states to defend those bigger lawsuits? Or the potential for plaintiffs to frame claims of race-based discrimination as political discrimination to take advantage of those new rules?

COUNSEL

No one knows; we dont get to ask the Supreme Court questions. But Gill certainly increases the burdens and risks to states from redistricting lawsuits. The statutory right to attorneys fees for successful claims wont be lost on potential plaintiffs, either.

PRESIDENT

But just because someone can file a lawsuit doesnt mean they will win. How easy will it be for plaintiffs to win on these claims?

COUNSEL

In general, a plaintiff wins an equal protection claim by showing that the state treated him differently for an invidious or irrational purposeand that the differential treatment had a discriminatory effect.

SPEAKER

Whats the alleged invidious purpose here? That the state invidiously discriminates against a political party by drawing district boundaries that deprive it of political power?

COUNSEL

Exactly.

PRESIDENT

But legislatures have done that since … forever!

COUNSEL

I know. The court called this a political gerrymandering claim, but that phrase itself is redundant. The 1886 version of Websters dictionary defines gerrymandering as drawing district lines with a view to give a political party an advantage over its opponent. This isnt a new phenomenon.

SPEAKER

So why is it now a constitutional problem?

COUNSEL

I dont know. In fact, a prior Supreme Court case called Vieth v. Jubelirer arguably held that political-gerrymandering claims dont exist. But Vieth was messymultiple opinions, and no clear majorityso the Gill majority worked around it.

SPEAKER

Wait a minute. Other redistricting rules really restrain our ability to draw boundaries that benefit one political party. We have to comply with the Supreme Courts one-person, one-vote rule. Districts must meet compactness and contiguity requirements. And we try to keep political subdivisions in the same district. Did Gill get rid of those rules?

COUNSEL

No. We still must follow them. But political gerrymandering is now actionable.

SPEAKER

So new boundaries cant favor a political party. And we must follow the old rules. But now we expressly consider the likely partisan electoral outcome in each new proposed districtto make sure that each partys number of seats aligns with its percentage of the statewide vote?

COUNSEL

(Shrugs.)

As best I can tell.

PRESIDENT

How close a match does the Constitution require? Suppose we predict that a political party will get 40 percent of the statewide vote. So we draw a map that should give its candidates 40 percent of the seats. But, unexpectedly, the political party wins 45 percent of the statewide voteand wins only its expected 40 percent of the seats. Or the party gets its expected 40 percent of the vote, but only 33 percent of the seats. Constitutional problems?

COUNSEL

Gill really doesnt say.

SPEAKER

So our message to the caucus is: We have to draw boundaries that give more seats to our political opponents. Yet we cant know in advance if were giving them enough seatsor even how they can successfully challenge the new map. And if a challenge does succeed, a federal judge might award them seats they didnt win at election.

COUNSEL

Bingo.

PRESIDENT

(Looking at the SPEAKER.)

Remind me who said courts were the least dangerous branch?

(SCENE)

***

STILL TO BE DRAFTED

Act II: Lawsuits, Inevitably

Act III: Judges Draw Overtly Partisan Boundaries