Is the End of Gerrymandering Near? Huge Crowds and Publicity Surround U.S. Supreme Court for Pivotal Case
By Carl Carnevale, law student at the University of Akron
Last week the Supreme Court heard Gill v. Whitford, a gerrymandering suit led by retired law professor Bill Whitford challenging the constitutionality of Wisconsin’s state legislative map. The map was passed by a Republican-dominated legislature after the 2010 census. Many election law experts consider Gill to be a landmark case in the making that will decide the future of gerrymandering in modern American politics. Sensing the tremendous stakes, big names in law, politics, media, and celebrity descended upon the nation’s capital during oral arguments.
The biggest issue the court is grappling with is whether partisan gerrymander cases are even justiciable, meaning that the courts have the authority and ability to hear and adjudicate them. Courts can already hear racial gerrymander cases with authority under the 14th Amendment. A victory for Wisconsin (technically, the Wisconsin Elections Commission) could potentially close the door to such challenges forever, leaving political gerrymandering as a perfectly legal practice with politics being the only supposed remedy.
A similar case like this was brought in 2004 when Vieth v. Jeubelirer challenged a Pennsylvania congressional map. In that case, the Supreme Court declared political gerrymander cases nonjusticiable by claiming that courts have no real way of remedying them. However, this declaration did not become hard law because the Court could only manage a plurality decision (rather than a needed majority decision).
The reason for this was because Justice Anthony Kennedy voted with the plurality in Vieth but wrote his own opinion. Whereas the Court in Vieth opined that partisan gerrymander cases cannot be brought before a court, Kennedy wrote that they eventually could be if a “workable standard could be found” for the court to use in adjudicating them. The “workable standard” is the key to this year’s Gill case.
The Whitford plaintiffs believe they have found such a workable formula in the form of an independent mathematical analysis called “efficiency gap,” developed by University of Chicago law professor Nicholas Stephanopoulos and political scientist Eric McGhee. Efficiency gap measures “wasted votes,” defined as votes cast for a losing candidate or votes above the number needed to win a particular race.
The efficiency gap, simply put, is the ratio of wasted votes against the total votes cast. Whitford contends that if the efficiency gap becomes so egregious that a wide spectrum of election outcomes would yield similar results for one party, then unconstitutional gerrymandering may have occurred.
Two large questions loom over this case:
First, is math the end-all answer to gerrymandering? It’s a legitimate question. Skeptical justices have good reason to fear what may come to the judicial branch by answering yes: litigation from losing parties every election cycle claiming that a state’s maps are unfair, with each side turning post election court battles into a go-nowhere spats between each side’s “data experts.” Chief Justice John Roberts, not shy to show his preference during arguments, went so far as to dismiss the plaintiff’s efficiency gap work as “sociological gobbledygook.”
Gerrymandering is widely regarded as a terrible and destructive practice designed to deliberately eviscerate effective democracy in favor of one faction or another. But should software programs be the end-all judge of a constitutional issue?
The second (and perhaps most important) question is this:
Did the challengers sway Justice Kennedy this time around? Has Kennedy finally found the workable plaintiff in Gill that he did not have in Vieth a decade ago?
There were some hints in oral arguments to offer speculation as to the Court’s possible decision. The justices appeared split along the predictable partisan lines. Justice Neil Gorsuch likened the use of math to identify gerrymandering to the use of steak rub, suggesting a heavy preference that courts have no place to dictate states’ maps based on the parsing of numbers. Justice Ruth Bader Ginsberg asked rhetorically of her colleagues “what becomes of the precious right to vote?”
Justice Sonia Sotomayor tongue-tied the Wisconsin Legislature’s attorney, Erin Murphy, with one simple question: “How does [gerrymandering] help our system of government?” To Ms. Murphy’s credit, she was tasked with defending a nearly indefensible position.
Kennedy did not appear to tip his hand with his questions, but some have speculated that he is finally ready to see the court address the problem of political gerrymandering. Above The Law reported that Kennedy’s was heavily engaged during Whitford attorney Paul V. Smith’s presentation but asked no questions of the other side, suggesting that he may finally have found a proper plaintiff to tackle the gerrymandering issue.
Ultimately, most experts agree that the outcome of this case all boils down to Kennedy’s vote. Whether he has been persuaded is anyone’s guess. We’ll have to wait with much anticipation for that question to be answered. There is no doubt that the opinion will be (and should be) the nation’s top headline when it is finally published.
Check out the official transcript of the oral arguments.
From Cleveland.com’s Rick Exner Math and the Ohio Gerrymander: