By Jessica C. Dickinson, J.D.
Common Cause Ohio
Gerrymandering hasn’t been declared unconstitutional because it’s hard to fix a problem if you can’t define it, just ask the United States Supreme Court.
Fortunately, the U.S. Supreme Court is ready to revisit this problem. The court agreed to review a Wisconsin appeals case, Gill v. Whitford. A lower court ruled that the state’s Republican-drawn map is unconstitutional due to partisan gerrymandering.
The Supreme Court has never declared drawing legislative district lines to benefit one political party or gerrymandering unconstitutional.
The Court missed an opportunity to fix that in 2004 with Vieth v. Jubelirer. The more conservative justices held that “no standard was available to resolve gerrymandering questions.”
Justice Kennedy disagreed and acknowledged that gerrymanders can, he explained, “burden representational rights” by “penalizing citizens” because of their “association with a political party” or their “expression of political views.” The liberal justices identified gerrymandering as problematic but each used a different definition or way to quantify gerrymandering.
What is gerrymandering?
Every 10 years, after the census, congressional and state legislative lines are redrawn to address changes in the population. But all too often, redistricting is used to manipulate boundaries and stack the deck in favor of a particular political party or incumbent candidate.
Gerrymandering leads to uncompetitive general elections. The partisan make-up of Ohio’s Congressional districts perfectly predicted the political party of the winner in every single race in 2012, 2014, and 2016.
Gerrymandering is such an unfair advantage that it is like playing cards with someone who cheats. The “game” is rigged but in this case, the marginalized party and the voters can’t just walk away. So, what do we do? We can do like Wisconsin citizens and activists in Ohio and take a stand for fairer rules.
Getting to the Supreme Court
Bill Whitford, a former law professor and self-described “political junkie,” met regularly with a group of friends at the Watts Tea room. This group of lawyers, political scientists, and professors had been involved in previous efforts to stop gerrymandering in Wisconsin. As they began to discuss taking another crack at a challenge, they invited him to join their group as a researcher.
The attorneys from the group had filed a lawsuit and through the discovery process, they were able to gain access to previously unseen documents such as:
Armed with this evidence and research evaluating and defining gerrymandering by University of Chicago Law School professor, Nicholas Stephanopoulos and Public Policy Institute of California research fellow, Eric McGhee, the group felt confident that they could prove that the redistricting map drawing process was conceived with “partisan intent.”
Bill Whitford and his friends (the plaintiffs) argued that the 2011 redistricting plan, the Wisconsin state legislative map, created an unconstitutional partisan gerrymander unduly favoring Republicans.
Specifically, Whitford argues that the GOP-controlled legislature enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide in violation of the First Amendment’s right to free association. A Wisconsin district court agreed and determined that the First Amendment’s right to free association was violated because it minimized Democrats’ voting power.
The Whitford team also argued that the 2011 map violates the Fourteenth Amendment’s Equal Protection Clause.
Under the Equal Protection Clause, the laws of a state must treat an individual in the same manner as other people in similar conditions and circumstances. The Wisconsin Court determined that the map violated this clause because a state should not redraw district lines in a way that treats voters from one party differently than voters from another party.
The District Court’s decision was then appealed. A three-judge federal panel upheld the decision and ordered the Wisconsin legislature to redraw the state assembly map by November 1, 2017. This ruling has been put on hold pending the Supreme Court’s decision.
Using Math to Define Gerrymandering
Gerrymandering is hard to define objectively and the Supreme Court hasn’t been able to establish a standard definition but math can help. The Wisconsin District Court applied what’s called the “Efficiency Gap.”
This concept, developed by Nicholas Stephanopoulos and Eric McGhee, focuses on how much district lines “pack” and “crack” the marginalized party’s voters for partisan advantage.
Wasted votes sounds harsher than it is. In a nutshell, the winner of an election only needs half of the votes plus one more in a two-way race. A wasted vote is one that does not help to elect a candidate or were unnecessary to get elected.
In bringing the case to the Supreme Court, Bill Whitford and many others hope that it can decide what standard to evaluate the claim of partisan gerrymandering.
The Efficiency Gap model is one way to analyze the gerrymandering problem. Ohio’s redistricting model also uses some math to pushback on gerrymandering. In 2015, voters overwhelmingly supported state legislative redistricting reform which includes the goal of representational fairness.
To meet the goal of representational fairness, the statewide percentage of districts that lean towards each other of the two major parties shall closely correspond to the partisan preferences of the voters of Ohio. This statewide preference is measured by determining the partisan preferences in statewide and federal general elections over the previous ten years.
Representational fairness is also used in the Fair Districts=Fair Elections’ congressional redistricting reform proposal.
What’s in it for Ohio
"The fact is we don't have competitive districts in the state of Ohio,'' said Daniel P. Tokaji, a professor of election law at The Ohio State University's Moritz College of Law.
The state legislature could address congressional redistricting reform by putting it on the ballot but they aren’t. Ohio activists are now collecting signatures and driving redistricting reform at the congressional level.
How the Court rules on Wisconsin’s challenge has the potential to help states such as Ohio make the mapmaking process as fair and unbiased as possible.
Does this mean Ohioans who want fairer rules and fairer elections should stop their reform efforts just because this case might fall their way? No.
When it comes to taking on the behemoth that is government, you can never plug too many holes and court cases can take years to resolve so you need have good rules for redistricting in place.
It has been over a decade since the Supreme Court has agreed to review a partisan redistricting case and the seriousness of this issue is indicative of them doing so. The Court’s ruling, which is likely to come next year, has the potential to impact redistricting efforts for decades to come.
In the meantime, Professor Whitford will continue hoping that the courts “begin to get into the area of setting limits” so that gerrymandering can be a thing of the past.