How people elect parliaments
The legal arguments are lining up in what may be the most significant electoral law case of the decade in the United States Supreme Court.
American’s legislative elections are racked by the scourge of gerrymandering, where electoral district boundaries are deliberately drawn to maximize the number of seats won by the political party in power.
The issue has dogged the US court system since the 1980s, but it may be about to be decided decisively.
US states traditionally pass new legislation after each decennial national census to redistribute their electoral boundaries, taking into account of population changes and movements.
But in the 2011-12 round of such boundary reviews, three new developments came into focus.
First, electronic technology and the availability of demographic and political data had improved significantly even from the 2001-02 cycle, allowing for far more sophisticated (and therefore more partisan) electoral map-making.
Second, the state of the law on the subject became unclear after 2005, possibly leading partisan legislators to believe they could get away with more biased boundary-making.
Finally, the Republican Party undertook a specific strategy not merely to win control of key state legislatures at the 2010 elections, but to deliberately prepare to use the upcoming round of redistricting to influence future state and national election results.
The story of the Republican gerrymandering strategy is told in detail in David Daley’s book Ratf**ked (2016).
In his account Daley describes how after their 2008 presidential election loss to Barack Obama, “ … Republicans turned a looming demographic disaster into legislative majorities so unbreakable, so impregnable that none of the outcomes [of congressional elections] are in doubt until after the 2020 census.”
“It is the story of new mapping technologies so exact that they’ve sorted and resegregated Americans, while creating congressional districts where the only competition comes from someone more extreme.”
Political critics have replied that Democrats are also guilty of gerrymandering, with the state of Maryland identified as one case by the other side. But there is no doubt that the major responsibility for this decade’s gerrymandering surge lies with the Republican Party.
One of the key states Republicans took control of in 2011 was the politically closely balanced state of Wisconsin.
The new boundaries drawn in 2011-12 for the state legislature of Wisconsin by the legislative majorities held by the Republican Party have manifestly affected representation in the state legislature.
In 2012 the new boundaries actually caused an inversion of the election result, with Democrat Party candidates winning 51% of the state-wide votes for seats in the 99-member Assembly, but Republicans taking 60 of the 99 seats.
The chamber of the Wisconsin State Assembly (image: Wikipedia)
In the two elections since then the Republican vote has slightly exceeded 50%, and the party’s seat numbers in the Assembly have blown out even further.
Overall the new 2012 map of district boundaries appears to have given the Republican party a 10-15 seat advantage in winning seats in state’s lower house.
At least that is what a federal District Court concluded late in 2016, finding that the legislators controlling the map-making had seriously gerrymandered the boundaries.
The District Court ruled that the state district boundary law was invalid, and that the state legislature must come up with new and fairer boundaries in time for the November 2018 elections.
The State of Wisconsin, led by Republican officials, has challenged this ruling to the US Supreme Court, which will hear arguments for the Gill v Whitford case on 3 October. (In the case title the Wisconsin administration is ‘Gill’, while the appellees who successfully disputed the current boundary laws are ‘Whitford’.)
The Wisconsin state capitol in Madison (image: Wikipedia)
The Supreme Court appears to be expediting the case, since a finding that allowed the Distract Court’s judgment to stand would require urgent work to prepare for the start of the election primary season in early 2018.
The case has also attracted a number of submissions from interested parties (called ‘amicus briefs’ in US legal terminology), including from political parties and legislators, lobby groups, and legal and historical academics.
The state of US law on legislative gerrymandering is unsettled.
Since the 1960s the Supreme Court has insisted that states must strictly avoid racial discrimination in setting electoral boundaries. The legal mandate for this arises both from provisions of the US Constitution as well as more modern congressional laws governing electoral processes.
The race-related rulings did not expressly prevent gerrymandering for the sake of partisan advantages by political parties. However in recent decades the voting habits of African-Americans have come to be highly politically polarized, meaning that whether gerrymandering is being done for racial motivations or for partisan ones has become somewhat blurred.
There is little doubt that drawing electoral boundaries to group localities with larger populations of black voters into the minimum number of seats concentrates the Democratic vote, and thus advantages Republicans in winning legislative majorities. But Republican map-drawers must carefully avoid being discovered using race-based data in such map-drawing.
This they failed to do in the last round of boundary-setting in the politically vexed state of North Carolina, where a recent court ruling invalidated the current boundary maps and remarked that the map-making legislators had targeted racial demographics “with almost surgical precision”.
But not all gerrymandering is about racial demographics, and the law on whether gerrymandering that is strongly partisan, but not inherently race-based, is what is now up for decision.
In 1986 a six-judge majority of the nine-member Supreme Court ruled (Davis v Bandemer, broadly cited as ‘Bandemer’) that gerrymandering for partisan motivations was indeed offensive to the US Constitution and, crucially, was ‘justiciable’, meaning that it was proper for the courts to investigate and if appropriate to invalidate boundary-setting state laws. In that case, however, a majority of the Court also found that the facts before it did not actually amount to invalid gerrymandering.
The law was next tested in the crucial 2004 case of Vieth v Jubelirer. Here a four-judge minority of the Court actually wanted to overrule the Bandemer precedent, and hold that gerrymandering was non-justiciable.
The five other judges did not agree to change the legal precedent. But only four of them were prepared to settle on a legal test to separate valid from invalid boundary-making.
The crucial ninth judge – Justice Anthony Kennedy – voted to retain the Bandemer precedent, but could not determine a suitable test for gerrymandering, and so ruled against the specific boundary law in that case being held invalid.
In the 13 years since the Vieth decision, Justice Kennedy’s non-decision appears to have been widely interpreted as meaning that the Court might never interfere in gerrymandered election boundaries.
(In the one intervening Supreme Court case on the subject, League of United Latin American Citizens v Perry in 2006, the justices invalidated the boundaries of a single district in Texas – itself a logically curious result, since if one district’s boundaries are invalid then those of its neighbouring districts must also be affected – but otherwise managed to avoid making any change to the inconclusive Vieth judicial position.)
The Gill v Whitford amicus brief from the bipartisan duo of Senators John McCain (Republican, Arizona) and Sheldon Whitehouse (Democrat, Connecticut) published today directly attributes the current decade’s problems not only to its immediate political culprits, but also holds the Supreme Court itself accountable.
“The rise of extreme partisan gerrymandering over the past decade can be traced directly to this Court’s decision in Vieth v Jubelirer,” Senators McCain and Whitehouse write.
“Although partisan gerrymandering existed before Vieth, the threat of judicial review provided a strong deterrent that kept states from adopting extremely gerrymandered districts. Vieth’s refusal to treat partisan gerrymandering claims as justiciable effectively removed this threat. State legislatures—and political operatives seeking to gain and entrench political power—have viewed this decision as an invitation to redraw districts to push the limit of partisan advantage.”
“As the American Bar Association observed, “[t]he Court’s recent decisions appear to give legislators leeway to preserve partisan advantage as zealously as they like when drawing district lines.” ”
The case has drawn another remarkable amicus brief from a wider group of current and former members of Congress – 18 Republicans and 18 Democrats, from 23 different states. They write that they are “united in the belief that removing the most extreme forms of partisan manipulation from the legislative redistricting process is consistent with principled and constituent-first representation.”
The bipartisan group “hope[s] that describing their first-hand experiences with the harms caused by hyper-partisan gerrymandering will help the Court understand why basic, enforceable constitutional limits on extreme gerrymanders will make Congress work better for the People.”
The membership of the Court has changed since 2004, with only one of the four judges who would have overturned the Bandemer law still on the bench.
But American analysts still regard the Court as divided in such political questions between five ‘conservative’ judges and four ‘liberal’ judges, with nominal conservative Justice Anthony Kennedy usually taken as the central swinging vote that can decide these sort of cases.
Kennedy’s crucial comments in the Vieth judgment in 2004 – that there was no ‘manageable standard’ against which to assess gerrymandering claims – has itself spawned academic work precisely to create such a standard.
In the earlier litigation in Wisconsin, work by scholars Nicholas Stephanopoulos and Eric McGhee on a new test termed the efficiency gap was used to reach the determination that the partisanship detectable in the Wisconsin electoral boundaries should be held invalid.
All eyes will be watching the case to see whether Justice Kennedy – and any others on the bench – agree that a workable test for unacceptable gerrymandering has finally been found.
If the Supreme Court upholds the District Court’s finding in the Wisconsin case, the state will promptly need to redraw its electoral boundaries.
Moreover – assuming the Supreme Court hands down a clear set of reasons to guide the nation into the future – similar litigation can be expected immediately in several other states. Gerrymandering in North Carolina, Maryland and Texas has already been challenged.
A Supreme Court solution to the gerrymandering question could trigger major electoral boundary changes, feeding into the 2018 state and congressional electoral cycle.
If, on the other hand, a majority of the Court overrules the Wisconsin District Court’s decision, it could effectively signal that even extreme partisan gerrymandering in the United States lacks any constitutional limitation.
A detailed discussion of the ‘efficiency gap’ gerrymandering measure is provided in Extreme Maps, Laura Royden and Michael Li, Brennan Centre for Justice, 2017.
Also at the Brennan Centre, Thomas Wolf has a detailed review of many of the amicus briefs submitted to the Supreme Court for Gill v Whitford.