Whitford v. Gill: Has Partisan Redistricting Finally Gone Too Far?

Drew Watkins, KLJ  Senior Staff Editor[1]

When the Republican controlled Senate announced, after the passing of Antonin Scalia, that they would not consider any nominees to fill his vacant seat until after a newly elected President was sworn into office, many people speculated that this decision would have an impact on the election.[2] Now, thanks to a federal district court in Wisconsin, the newly elected Justice may have the opportunity to leave a lasting mark on future elections as well.

Generally, state legislatures are responsible for drawing the borders of their states legislative districts.[3] When a new census is released every 10 years the state must redraw the boundaries of their legislative districts to make sure the populations stay even.[4] Ultimately, the party in power–Democrat or Republican–tends to redraw districts in a way that favors them in a process referred to as gerrymandering.[5] This has made it even more difficult in our hyper-partisan electoral climate for insurgent candidates to win and for control of state legislatures to flip.[6] This can also have an impact on national elections because members of the U.S. House of Representatives are elected from state drawn legislative districts as well.[7]

The United States Supreme Court has already held “that redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race demands the same close scrutiny that we give other state laws that classify citizens by race.”[8] However, up until now, they have avoided the question of how redistricting based on party affiliation should be reviewed. On November 21, 2016 a federal court in Wisconsin struck down that state’s legislative maps drawn in 2011 by the Republican controlled legislature.[9] The three-panel court held the district maps were unconstitutional because they “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”[10] In its lengthy opinion, the court found, “that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, [the redistricting Act] constitutes an unconstitutional political gerrymander.”[11]

The national implications of this case could be huge because it includes a new method for determining whether legislative maps are drawn in a way that discriminates against a political party.[12] Redistricting challenges in federal court are appealed directly to the U.S. Supreme Court.[13] The Wisconsin Attorney General, Brad Schimel, has already promised an appeal.[14] Given the recent appointment of Justice Neil Gorsuch, a deadlocked vote leaving the lower court holding in place is unlikely.

The U.S. Supreme Court has previously indicated that lawmakers can go too far in partisan redistricting, but the Court has yet to adopt a standard for when maps become so partisan that they amount to improper political gerrymandering and should be thrown out.[15] The Wisconsin court adopted such a test, which measures wasted votes–votes not needed to elect a candidate in a particular district–as a way of determining when a map is too partisan.[16] The dissent in the Wisconsin case noted that the test adopted by the majority was not materially different than others previously rejected by the U.S. Supreme Court.[17] “The Supreme Court heard this same story in 1986. It was unmoved. In 2004 the Court rejected a similar claim, and the reasons the Justices cited only twelve years ago apply with equal force now.”[18]

When the Supreme Court hears this case they will have the opportunity to establish a test for determining when partisan redistricting has gone too far. It seems unlikely, with a new Republican Justice, that the Supreme Court would uphold the test adopted by the Wisconsin court, but in this election cycle the outcome of this case is anyone’s guess. One thing is certain: the Supreme Court’s decision will have lasting consequences on future elections, state and local, for years to come.

[1] J.D. expected May 2018.
[2] See, e.g., Jonathan Martin & Patrick Healy, Obama’s Options for a Supreme Court Nominee, and the Potential Fallout, N.Y. Times (Feb. 16, 2016), http://www.nytimes.com/2016/02/17/us/politics/supreme-court-path-is-littered-with-pitfalls-for-president-and-gop.html.
[3] Aaron Blake, Redistricting, explained, Wash. Post (June 1, 2001), https://www.washingtonpost.com/politics/redistricting-explained/2011/05/27/AGWsFNGH_story.html.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Shaw v. Reno, 509 U.S. 630, 644 (1993) (internal citations omitted).
[9] Jason Stein & Patrick Marley, Federal court strikes down GOP-drawn maps, Milwaukee J. Sentinel (Nov. 22, 2016), http://www.jsonline.com/story/news/politics/2016/11/21/federal-court-strikes-down-gop-drawn-maps/94233560/.
[10] Whitford v. Gill, No. 15-cv-421-bbc, 2016 WL 6837229, *1 (W.D. Wis. Nov. 21, 2016).
[11] Id.
[12] Stein & Marley, supra note 9.
[13] Id.
[14] Id.
[15] See generally Vieth v. Jubelirer, 541 U.S. 267, 306-17 (2004) (Kennedy, J., concurring).
[16] Stein & Marley, supra note 9.
[17] Id.
[18] Whitford, 2016 WL 6837229 at *98.