Rick Esenberg is the founder, president and general counsel of the Wisconsin Institute for Law & Liberty, which filed an amicus brief in support of the state appellants in Gill v. Whitford.

From the moment it first adopted a constitutional requirement of “one-person, one vote,” the Supreme Court has emphasized that “legislative reapportionment is primarily a matter for legislative consideration and determination.” This deference is rooted not in an overly roseate view of the capabilities and character of the typical state legislator, but in clear-eyed assessment of the judiciary’s competence to superintend a highly political process. The court has long acknowledged that politicians will seek partisan advantage – indeed it has gone so far to suggest that such intent can be presumed – but it has never held that any legislative consideration of maps’ likely partisan impact is invalid. The redistricting process requires weighing a panoply of nonpartisan and widely accepted objectives – contiguity, compactness, continuity, respect for political boundaries, keeping intact communities of interest, protecting the ability of minority voters to elect candidates of their choice, and even political compromise – that often work at cross-purposes and produce maps that are more a potpourri of conflicting objectives than the product of an identifiable set of principles. Faced with such a process, it is not surprising that the Supreme Court has been unable to articulate a way to determine how much partisanship is “too much.”

In 1986, after years of confused and contradictory litigation in the lower courts, the Supreme Court affirmed the possibility of political-gerrymandering claims in Davis v. Bandemer. But the justices could not agree on a standard by which such claims could be measured, and more years of conflicting and futile litigation ensued. In 2004, a majority of the justices agreed in Vieth v. Jubelirer that partisan-gerrymandering claims could be considered only rarely, if at all. A plurality, after noting that Bandemer’s legacy had proved to be “one long record of puzzlement and consternation,” was prepared to declare political-gerrymandering claims to be nonjusticiable political questions. Concurring in the result, Justice Anthony Kennedy was not ready to go that far. Although he agreed that no standard had yet been identified, he was unwilling to foreclose the possibility that someday it would be found.

But, 13 years later, that standard remains missing. Two years after Vieth, the Supreme Court returned to the question of political apportionment and once again failed to agree on an acceptable standard. In League of United Latin American Citizens v. Perry, the court noted again that “disagreement persists” regarding the justiciability of political-gerrymandering claims but declined to revisit Vieth. It could not, however, escape the confusion and discord that has marked decades of litigation. Although a majority of the court apparently agreed that the Texas legislature did “seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority,” the justices could not agree on whether the results were unconstitutional. None of the court’s six opinions garnered a majority. Lower courts have fared no better, with one panel asking, earlier this year, “how we could ‘allow a claim to go forward that no one understands.’”

In Gill v. Whitford, the plaintiffs convinced a divided three-judge panel of the Western District of Wisconsin that they had finally located the grail that had eluded detection for the better part of a half-century. Although the district court conceded that maps drawn by the Wisconsin legislature respected traditional redistricting criteria, it nevertheless held that they were a partisan gerrymander that unconstitutionally favored Republicans. The standard that supposedly solves the puzzle that stumped the court in Bandemer and Veith turns on something called the “efficiency gap.” Calculation of the gap begins with the assumption that all votes cast for a losing candidate, along with any votes cast for a winning candidate that exceed the number of votes necessary for that candidate to win, are “inefficient” or “wasted.” If more “wasted” votes have been cast for the candidates of one party than have been cast for another, there is an “efficiency gap” – i.e., the votes that were cast for candidates of one party were more “efficiently” translated into legislative seats than were the votes for candidates of the other party.

This gap is nothing more than a measure of the extent to which the degree of concentration of each party’s voters within districts differs. Eliminating the gap requires ensuring that, say, Democratic voters are not more likely to be in heavily Democratic districts in a way that results in a “disproportionate” number of Republican victories. Treating departure from such proportionality as a constitutional problem works only if there is a constitutional obligation to ensure that the voters of one party are not more concentrated than voters of another, or if the lack of proportionality in the distribution of partisan votes or the degree of their concentration is a reliable indicator of partisan skullduggery.

But there is no reason to presume that voters who prefer Democrats and Republicans will be distributed evenly across a state or that each party’s voters will be equally geographically concentrated. Parties suffer large numbers of “wasted” votes because like-minded voters increasingly live in close proximity to each other. After every presidential election, we see maps of the United States depicting results by county that reveal our country to be a sea of red dotted with islands of deep blue. As Michael Barone has noted, electoral outcomes are “largely the result of demographic clustering, the fact that heavily Democratic voting groups—blacks, Hispanics (in many states) and gentry liberals—tend to be clustered in most central cities, many sympathetic suburbs and most university towns, while Republican voters are spread more evenly around the rest of the country.”

Although the district-court panel in this case recognized that the “efficiency gap” was a product of the geographic concentration of voters who have historically preferred Democrats, it nonetheless found that the gap was just “too big.” However, it offered no standard to measure how much of a gap is too much, providing no answer to the question that has stumped the courts for years. It held that the gap in Wisconsin was unacceptable because it was possible to draw maps with lower gaps. And that gives the game away. The obligation to eliminate the “efficiency gap” is rooted in a presumption that the partisan composition of the legislature should track (to some unspecified degree) the statewide vote totals for candidates of each political party and is a function of the lack of proportionality between those two numbers. But a lack of statewide proportionality is constitutionally “inefficient” and votes are “wasted” only if statewide proportionality is a constitutional goal. The contrived nature of its name suggests that this is not an “efficiency gap,” but a “proportionality gap.”

The Supreme Court has already considered proportionality and rejected it. There is no constitutional right for all persons who prefer the candidates of one party to have the same number of “wasted” votes or proportional representation in the legislature. To create a presumption that deviation from proportionality is constitutionally problematic is to judge the elections we do hold – multiple single-member elections held in geographic districts in which voters select an individual – by the degree to which the results conform to elections that we do not hold – statewide elections in which voters select a preferred party. To make the latter the measure of the former is to change the nature of legislative elections and place pressure on both legislatures and lower courts to ensure partisan proportionality.

To be sure, the district court in this case required a finding that the legislative majority “intended” to benefit itself and relied on law-office history to conclude this was so. But, as the Supreme Court recognized in Bandemer itself, that intention will almost always be present. Although the district court allowed for the possibility that the gap might be explained away by the greater concentration of the voters of one party, it rejected that explanation for the Wisconsin maps because the mapmakers could have drawn a set of maps with a lower efficiency gap. In other words, the district court imposed on the legislature a constitutional obligation to gerrymander for competitiveness. Ironically, in the interest of rooting out partisan bias, it endorsed a project of balancing partisan interests that would embroil the courts in partisan concerns.

The efficiency gap is nothing new and does not move our redistricting jurisprudence to a law-based, judicially manageable standard. Its failure suggests that the Vieth plurality had it right. Sometimes the absence of an answer means that we have asked the wrong question.

Posted in Gill v. Whitford, Summer symposium on Gill v. Whitford, Featured, Merits Cases

Recommended Citation: Rick Esenberg, Symposium: Whitford is nothing new, SCOTUSblog (Aug. 9, 2017, 2:24 PM), http://www.scotusblog.com/2017/08/symposium-whitford-nothing-new/