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Lawyers scrambling after SCOTUS sidesteps gerrymandering

August 8, 2018

When presented with one of the most consequential cases of the 2017 term, the U.S. Supreme Court heard oral arguments, then heard more oral arguments before issuing an opinion in mid-June that essentially sidestepped the issue.

The case, Gill v. Whitford, 585 U.S. ___ (2018), brought partisan gerrymandering back to the court. Previously the topic has been the subject of three cases, starting with Davis v. Bandemer, 478 U.S. 109 (1986), which originated in Indiana. Each time, the justices struggled with whether the judicial branch should or could step into an issue that falls under the purview of state legislatures.

Coming from Wisconsin, the Gill case was filed by Democrats asserting Republicans violated the Constitution by drawing legislative districts that gave a heavy advantage to the GOP. Key to the plaintiffs’ argument was the efficiency gap measure, which they said illuminated how Republicans were able to use big data to pack and crack districts with such skill that even when Democrats won a majority of the popular vote, Republicans got a majority of the Statehouse seats.

The maps, the plaintiffs charged, violated their First Amendment right of association and their 14th Amendment right to equal protection.

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After oral arguments, the justices asked to hear arguments in a partisan gerrymandering dispute from Maryland. That case, Benisek v. Lamone, 585 U.S. ___ (2018), was brought by Republicans challenging how the Democrats had drawn one district to favor a progressive candidate.

In the end, Chief Justice John Roberts delivered the majority opinion for Gill, which was joined by six justices. The court did not address the merits of the case, but instead found the plaintiffs failed to demonstrate they had standing to challenge the maps.

Retired Indiana Supreme Court Justice Ted Boehm was not surprised by the court’s ruling. Since the result was one of several the court could have provided, this opinion did not come completely out of the blue because the justices were wrestling with the issue.

“So, they punted,” he said.

However, the ball is still in play.

Mappes Mappes

The majority held the plaintiffs did not demonstrate individual harm, and the studies showing Wisconsin mapmakers skewed the district in favor of Republicans failed to address how gerrymandering will affect particular citizens’ votes. As a result, the justices saw the Gill case as being about group political interests and not about individual legal rights.

Usually, the court would have dismissed. But here, nodding to its own grappling with partisan gerrymandering, the majority remanded the case to the district court to give the plaintiffs an opportunity to prove a burden on their individual votes.

“We’re where we were before in terms of the door is still open and it hasn’t been closed yet,” said Harmony Mappes, partner at Faegre Baker Daniels LLP in Indianapolis.

“… (The court) left open the bigger issues … and said, ‘Until we get the standing part right, we don’t have a case to look at.’”

Michigan challenge

Yeager Yeager

Mappes is part of a team at Faegre led by partner Jay Yeager that is focusing on gerrymandering. The group drafted a response brief on behalf of the Wisconsin plaintiffs and are helping to represent the League of Women Voters of Michigan in its challenge to redistricting in the Wolverine State.

Yeager said the Michigan case is well-positioned after the Supreme Court’s ruling because the plaintiffs are already making a district-by-district argument. And it is moving forward. A trial date has been set for February 2019 in League of Women Voters of Michigan et al. v. Ruth Johnson, 2:17-cv-14148, and the attorneys are currently working through depositions and discovery.

District courts are moving quickly on the gerrymandering issue because of the national census and elections coming in 2020. The census data will be used to determine the number of legislative and congressional members a state will have, while the election will put the legislators in the Statehouse who will draw the maps in 2021. So, lawyers and courts are working to either get Wisconsin or another case to the Supreme Court next year.

In fact, when the Michigan congressional delegation moved to intervene in the Michigan case, the court denied the request. Now on appeal to the 6th Circuit Court of Appeals, the district court explained, in part, that allowing the intervention would delay the case.

A ruling from the U.S. Supreme Court finding partisan gerrymandering to be unconstitutional would, hopefully, include a clear standard, Yeager said. Though the decision would likely force only one state to redraw its maps, the direction should be such that other states know what to do when drawing districts.

“The goal is not to have litigation over every redistricting map,” Yeager said. “The goal is to have a clear rule that legislators can understand and comply with to be fair to voters.”

Gobbledygook

During oral arguments, Roberts was worried the reputation of the court could be diminished if it got dragged into deciding partisan gerrymandering disputes. The public might believe the justices were favoring one political party over another.

He then called the efficiency gap measure “sociological gobbledygook” and believed that pointing to the calculation would not satisfy the public’s suspicions.

Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison, was taken aback by the chief justice’s gobbledygook description. Burden was among a group of political science professors from around the country who submitted an amicus curiae brief, supporting the challenge to the Wisconsin electoral maps.

Calculating the efficiency gap provides a way to measure the extent of the gerrymandering, especially since merely looking for misshapen districts is no longer sufficient, Burden said. The people now drawing the maps are using not just voter information, he said, but are also mixing in consumer data, such as who has a gun license and who owns a house.

The result is a district that looks symmetrical but hands an overwhelming advantage to one party. As the amicus brief noted, in the 2012 election, Democrats won 51.4 percent of the statewide vote, but only captured 39 of the 99 seats in the state Legislature.

“This is not your grandfather’s redistricting,” Burden said.

Justice Elena Kagan questioned Wisconsin Solicitor General Misha Tseytlin, about today’s ability to draw district maps. Kagan said the techniques and technology have become “extremely sophisticated” and can be used to entrench a party in power for one election cycle after another.

When Tseytlin countered that the techniques were not scientific but only provided estimates, Justice Sonia Sotomayor jumped in. She noted the maps were drawn then redrawn when the data showed they were not partisan enough. The map makers kept going back and redoing their work to create more partisan versions.

“So why didn’t they take one of the earlier maps?” Sotomayor asked.

“Because there was not a constitutional requirement that they do so. They complied with all state law,” Tseytlin replied.

“That’s the point,” Sotomayor retorted.‘Not a pretty picture’

While parties challenging district maps are eager for the Supreme Court to render a decision, presenting a partisan gerrymandering case to the justices comes with a risk to the challengers. A majority could adopt the conservative view that redistricting is a state matter, and how states draw their maps is not an issue for the court. Thus, legislatures should work out their own mapmaking disputes.

Boehm maintained such a ruling would set the country back. He is very familiar with gerrymandering, having led the team of attorneys who battled Indiana’s maps in Bandemer.

The practice of skewing districts, he explained, can create a supermajority in the Statehouse that does not represent the view of the general population. Voters are disenfranchised and reaching a compromise on legislation becomes impossible.

“It’s not a pretty picture because gerrymandering has a lot of bad consequences for the republic,” Boehm said.

In Wisconsin, Burden agreed. “I think representative democracy is at stake,” he said. Legislatures are supposed to represent the people, he continued, but if the districts are drawn in a way that prevents the elected officials from being held accountable, then the “fundamental foundation of representative democracy is weakened.”•

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