Written By Kyle Palmore
Background
This term has seen a number of partisan redistricting cases come before the United States Supreme Court. So far, the Court has heard oral arguments for Gill v. Whitford and Benisek v. Lamone. Later this month, the Court will hear oral arguments for a third case concerning partisan gerrymandering: Abbott v. Perez. The decisions from these three cases have the potential to greatly impact the jurisprudence of partisan redistricting. The last time the Supreme Court spoke about partisan redistricting was in Vieth v. Jubelirer in 2004. In Vieth, the Court held that challenges to partisan gerrymanders were not in the purview of courts and were non-justiciable. As in many cases in the Supreme Court, Justice Anthony Kennedy was the swing vote. Justice Kennedy believed that a challenge to an extreme partisan map could have been justiciable if there was a clear standard for deciding when partisan redistricting becomes unconstitutional. As oral arguments for Abott near, the question remains whether Justice Kennedy will find if any of these cases present a clear standard for the Court to apply.
Gill v. Whitford
At the start of this term, the Supreme Court heard oral arguments for Gill v. Whitford, which involved challenges to Wisconsin’s voting districts under the First and Fourteenth Amendments. In 2016, the district maps made by the Republican-controlled legislature in 2011 were declared unconstitutional as partisan gerrymander. A three-judge panel in the United States District Court for the Western District of Wisconsin concluded that the maps showed “bad intent and bad effect” and that the map drawers used partisan measurements to ensure there was a Republican advantage.
During elections in 2012 and 2014, Democrats won a majority the votes in the statewide Assembly elections; however, Republicans took a majority of the seats in the state Assembly. For example, in 2012, Republicans made up only 48.6 percent of the vote, but gained 60 seats in the Assembly. Conversely, Democrats won 53 percent of the votes and only took 39 seats in the Assembly. Wisconsin Republicans argued that the maps reflected a natural geographic advantage.
When bringing this case before the Court, the plaintiffs argued that the state legislature diluted the Democratic vote by “cracking” and “packing” districts. The plaintiffs used the “efficiency gap” to make their argument. The efficiency gap shows the number of votes that are “wasted” during elections. Votes can be “wasted” in two ways. First, there can be more votes than needed in order for a candidate to win. Second, there can be too few votes to elect a candidate. The efficiency gap determines if a redistricting plan is biased against a party that “wasted” more votes than the other party. Positive values show an advantage for Democrats and negative values show an advantage for Republicans.
In the two aforementioned elections, the efficiency gaps were -13 and -10, respectively. These numbers identified a significant advantage for Republicans
Benisek v. Lamone
At the end of March, the Court heard a second case involving partisan gerrymandering, Benisek v. Lamone. In 2012, Roscoe Bartlett, a Republican, lost the congressional seat he held for 20 years by a 20 percent margin in Maryland’s 6th Congressional District. Previously, in 2010, Bartlett won that same seat by a 28 percent margin. Consequently, Republican voters in Maryland challenged the redrawing of the congressional district under the First Amendment.
Plaintiffs argued that the Democratic lawmakers in Maryland redrew the district in order to retaliate against those who supported Barlett and to dilute the Republican vote in the district. They further argued the district was redrawn to include more Democrats and to exclude Republicans. They argued that this violates the First Amendment as public officials may not retaliate against individuals for their expression. Here, lawmakers retaliated against voters that associated with a particular party when they redrew the district with the intent to dilute votes for the party not in power. Because of this intent, the Plaintiffs argued the new district map must be invalidated.
During oral arguments, Justice Kennedy expressed interest in the issue of a legislature drawing districts to favor the party currently in power. When the district in question was redrawn to accommodate for a population growth, lawmakers moved the district’s boundaries to include a very Democratic district. This change made the district more likely to vote Democrat than it had in the past. He asked whether this test would preclude legislatures from redrawing districts to account for a population shift that reduced support for a party. This question resembled one Justice Kennedy asked lawyers in Gill.
Abbott v. Perez
This month, the Supreme Court will again take on partisan redistricting via Abbott v. Texas. Abbott is the result of two Texas lawsuits, both named Abbott v. Perez, which centered around two maps—one for congressional districts and one for state legislative districts.
Starting in 2011, voters in Texas filed lawsuits alleging Texas violated both the U.S. Constitution and the Voting Rights Act. The lawsuits alleged that, between 2000 and 2010, Texas’ Republican-controlled legislature redrew congressional and legislative plans in order to dilute the vote of Latinos and African Americans, who made up 90 percent of Texas’ new population growth. Due to the growth, the state gained four new seats in the House of Representatives. In 2011, the Texas legislature redrew district maps to incorporate the new seats.
The newly redrawn district maps never went into effect. A three-judge panel in the United States District Court for the Western District of Texas blocked district maps prior to the 2012 election and created interim maps. The State appealed to the panel’s decision to the Supreme Court, which “threw out” the interim maps and told the State’s legislature to use the old district maps to draw new maps. In 2013, the Texas legislature adopted new maps, which were virtually the same to the maps it drew in 2011.
The maps, the 2011 district map and the newly adopted 2013 district maps, were once again taken to the district court. In August 2017, a three-judge panel in the United States District Court for the Western District of Texas invalidated two congressional districts. It found that one violated both the U.S. Constitution and the Voting Rights Act and that the other was drawn to minimize minority voting power and constituted impermissible racial gerrymandering. The panel also found that state legislative districts were intentionally packed and cracked districts in the Dallas-Fort Worth Area in order to dilute the minority vote. The most important holding for the panel was that the State’s districts were redrawn based on a “litigation strategy” as parts of the 2011 maps that were declared unconstitutional remained unconstitutional in the 2013 maps. The State did not redraw the maps to comply with the U.S. Constitution or the Voting Rights Act, but rather to shield the State from further legal challenges. The State was ordered, once again, to redraw the maps.
Shortly after the panel’s decision, Texas filed an appeal to the United States Supreme Court, asking for an injunction. The Court issued a temporary stay in response, and the consolidated cases will be argued on April 24, 2018.
Conclusion
Over the past six months, the Supreme Court has entertained a myriad of arguments concerning political redistricting. Of the nine Justices, only four were in the bench in 2004 when the court heard Vieth – Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Kennedy. In Vieth, Justices Thomas and Kennedy voted with the majority; and Justices Breyer and Ginsburg joined the dissent. Nevertheless, the question remains: has the Court finally found a case that presents a clear standard that can be used in determining whether or not state legislatures have engaged in unconstitutional partisan gerrymandering? While the outcome of these cases is not clear, one thing is: Justice Kennedy remains the swing vote on this issue, and his vote could potentially change how partisan redistricting is viewed.
Sources Cited
Adam Liptak, Supreme Court, Again Weighing Map Warped by Politics, Shows no Consensus, N.Y. Times (Mar. 28, 2018).
Adam Liptak and Michael D. Shear, Kennedy’s Vote is in Play on Voting Maps Warped by Politics, N.Y. Times (Oct. 3, 2017).
Amy Howe, Argument Preview: Texas Redistricting Battles Return to the Court, SCOTUS Blog (Apr. 18, 2018).
Barry C. Burden, Everything You Need to Know About the Supreme Court’s Big Gerrymandering Case, Washington Post (Oct. 1, 2017).
Greg Stohr, U.S. Supreme Court Grapples with Partisan-Gerrymandering Lawsuits, Bloomberg (Mar. 28, 2018).
Mark Stern, Undecided Court, Slate (Mar. 28, 2018).
Robert Barnes, Even on Second Look, Supreme Court Seems Stumped on Gerrymandering Issue, Washington Post (Mar. 28, 2018).
The Supreme Court Takes on Two Redistricting Cases from Texas, Economist Blog (Jan. 15, 2018).
Photo courtesy of ExchangeWire.