Law Review: Partisan Gerrymandering
The Supreme Court and lower courts have not been able to produce a justiciable or manageable standard for determining when state legislatures have been too policial in drawing congressional districts. In Baker v. Carr, the Court held that legislative redistricting was certainly justiciable and as such federal courts had the authority to intervene and decide redistricting cases. Years later, the Court would decide in Davis v. Bandemer that claims of partisan gerrymandering — or the creation of districts by state legislatures with the intent of entrenching a particular party in power — were also justiciable but failed to determine what (if any) standard could be applied to prove intent in partisan gerrymandering.
In June 2018, the case of Gill v. Whitford came before the court and raised certain questions regarding the adjudication of partisan gerrymandering claims. This case concerned the 2011 redistricting of certain districts in Wisconsin, which allegedly gave the Republican party in Wisconsin 60 percent of seats in the state legislature despite receiving only 48 percent of the vote. The appellees in this case, like in Bandemer, attempted to prove that beyond partisan gerrymandering claims being justiciable, such claims could also be adjudicated by an establishment and review of standards created by the Court. Despite the Court ruling that the appellees lacked Article III standing and leaving the question unanswered, the proposed standard relies heavily upon the “efficiency gap” rather than provable intent.
The efficiency gap is the difference between the parties respective wasted votes — either surplus votes cast in favor of a victor, or votes cast in favor of a loser — divided by the total number of votes cast. This standard becomes troublesome when considering the reality of political geography — that politically like-minded people will and almost always do situate themselves in the same towns, suburbs and districts. This fact undercuts the theory of the efficiency gap because it is inevitable that these populations will vote en masse and that some of those votes will wind up being wasted thus skewing the perceived pro-partisan efficiency. Without even making new districts, these political homogeneous neighborhoods and districts have, for the most part, already formed. Proving intentional partisan gerrymandering from the efficiency gap (or E.G.) is difficult and imprecise and, as such, is a poor standard for the courts to utilize.
Another standard proposed by Vieth sought to employ a two-pronged framework by determining “predominant intent to achieve partisan advantage.” Simply put, if plaintiffs were able to produce “evidence or circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage” — only then could they be said to have a standard to adjudicate. Predominant intent borrows from the tests used in racial gerrymandering cases Shaw v. Reno and Miller v. Johnson. These cases are in no way comparable to partisan gerrymandering as it is clear from the equal protections clause and the Voting Rights Act of 1965 that segregating voters on the basis of race is unlawful. However, considering Article 1 § 4 of the Constitution which establishes that the manner in which elections for Congress are conducted fall within the power of state legislatures, it seems clear that the Constitution at least considered that districts might be divided using partisan means. Because it often happens that state legislatures are continuously held by certain parties, the likelihood that districts are determined by some partisan means is inevitable. Furthermore, as Justice Scalia writes in the plurality opinion in Vieth, “it would be quixotic to attempt to bar state legislatures from considering politics as they draw district lines.” The simple fact is, redistricting is an exercise with a purpose. That purpose is to provide constituents with representation at the national level that most accurately reflects the political reality of those districts. To that end, districts will inevitably be designed in partisan ways. But while that might be the case, it does not necessarily mean that courts can never have a standard by which to determine if some districts go too far in their gerrymandering, thus violating some precept of the Constitution.
In League of United Latino American Citizens v. Perry (LULAC), political science professors Gary King and Bernard Grofman devised a standard that seemed to address the issue of partisan fairness by implementing the symmetry standard. Instead of concerning itself with partisan bias in how districts are formed — a reality perhaps equally determined by legislatures and persons’ political affiliations — the symmetry standard requires that legislators treat similarly situated parties equally “so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage [of the vote].” So if Party A and Party B have near equal representation in geographically congruous areas, legislatures should divide those areas equally allowing for the realistic possibility of either Party A or Party B to win in that area. This symmetry is best accomplished using highly sophisticated computer programs that map out political affiliations in geographic areas and create a number of maps able to be used by legislatures to determine the most appropriate redistricting scheme.
Using such a method as a standard by which the courts can determine political foul play bodes well for offering relief to the problems presented in Bandemer, Vieth and LULAC. It would be wholly feasible for a court to decide that, if given the tools to equitably divide areas into political districts, were a state legislature to not utilize that tool, the claim to excessive partisan gerrymandering could be made and the court would have a standard by which to intervene.
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Photo Caption: The “Gerry-Mander” cartoon, which first appeared in the “Boston Gazette” on March 26, 1812.
Photo Credit: Wikimedia Commons
