In deciding not to decide on two major redistricting cases, the U.S. Supreme Court this week signalled that it would not wade into the fight over partisan gerrymandering—but the justices did leave the door open to revisiting the issue, and perhaps soon.
The high court released two highly anticipated redistricting decisions this week—one challenging a Republican-drawn map in Wisconsin and one challenging a Democrat-drawn map in Maryland. In the Maryland case, the court merely issued a per curiam (unsigned) order sending the matter back to a lower court. In the Wisconsin case (Gill v. Whitford), though, the court ruled the plaintiffs lacked appropriate standing. Despite the lack of a substantive ruling, Chief Justice John Roberts took the opportunity to author a unanimous opinion outlining where the court stands on the question of gerrymandering.
Roberts' opinion makes it clear that a successful challenge to partisan redistricting must rest on the disenfranchisement of individual voters, rather than on the claim that one political party has been harmed.
"It is a case about group political interests, not individual legal rights," Roberts wrote of the Wisconsin challenge. "This Court is not responsible for vindicating generalized partisan preferences."
The Wisconsin case included four plaintiffs who argued that their votes had been diluted by "the manipulation of district boundaries" in the Republican-drawn state legislative district maps.
One of those plaintiffs, William Whitford, a retired law professor at the University of Wisconsin, admitted that the Republican map had not changed the outcome of the elections in his own legislative districts. He lives in Madison, after all, and it's about as solidly blue a place as you'll find in the Midwest. Instead, he claimed he suffered a harm that extended beyond his own vote and his own legislative districts.
"The only practical way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate, ideally in order to get the legislative product I prefer," Whitford told the district court that first heard the case.
This had always been a weakness of the Wisconsin challenge, and the plaintiffs knew it. In similar court cases that successfully challenged racial gerrymanders (an area where federal courts have been more willing to engage, while they've largely avoided political gerrymandering), courts have always focused on the specific harm to voters in specific districts, rather than on statewide unfairness. To make the broader argument, the Wisconsin challenge relied on a metric known as the Efficiency Gap.
The Efficiency Gap was developed, in part, as a response to a previous Supreme Court ruling. In 2004, after hearing a challenge from a group of Pennsylvania Democrats who claimed they were unfairly harmed by a GOP-drawn map, the Supreme Court ruled in Vieth v. Jubelirer that it could not adjudicate claims of political gerrymandering for lack of a "workable standard" for identifying it.
The Efficiency Gap was supposed to solve that problem. As I wrote earlier this year for Reason:
The Efficiency Gap attempts to measure the number of "wasted" votes in each congressional district, defined as any vote for a losing candidate at all and any vote for a winning candidate above and beyond the number needed to secure a victory. The formula attempts to highlight partisan imbalance among all the districts in a state, with the underlying assumption being that districts should be as competitive as possible to reduce the number of "wasted" votes.
Working in its favor is this system's simplicity: No software is needed, just election results and basic math. But there are gaps in the Efficiency Gap. For one, it requires that elections be held before it can be employed. That makes it useful for determining whether districts are fair after they've been drawn and put to use, but it doesn't offer much help for how to go about drawing boundaries to avoid such problems in the first place. For another, the Efficiency Gap relies entirely on election results, which can be misleading. A blowout win in one district means lots of "wasted" votes for the victorious party under the Efficiency Gap model, but that doesn't necessarily mean the map was designed to bring about that outcome. A particularly bad opponent, a national electoral wave, or any number of other factors could give a false positive if the Efficiency Gap is the only metric you're using to decide whether a district is unfair.
In this week's ruling, Roberts blows some serious holes in the idea that the Efficiency Gap can serve as a sort of Holy Grail for redistricting reformers.
"The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens," Roberts writes. "Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties."
That the Supreme Court unanimously backed this anti-partisan view is a welcome sign. That unanimity, though, tells only half the story. While all nine Justices agreed that the Wisconsin plaintiffs did not have standing for a broad challenge, the four liberal justices signed a concurring opinion by Justice Elena Kagan that likely foreshadows the next round of redistricting challenges. Once there is sufficient standing established, Kagan argues, then statewide evidence (such as the Efficiency Gap metric) and a statewide remedy could be on the table.
When gerrymandering inevitably comes back to the Supreme Court, that's where the battlelines will be drawn, says Walter Olson, a senior fellow at the libertarian Cato Institute.
"There's something I find very satisfying about the fact that the center has held. All of the justices, including the most liberal ones, agree about the role of the Supreme Court," Olson told Reason. But Kagan's concurrence, he says, "preserves as a possibility, at least in their minds, the outcome that the liberals were hoping to get."
There is one other question worth considering: Is gerrymandering a problem the courts should solve? The plaintiffs in the Wisconsin case seemed to think so, calling the Supreme Court "the only institution in the United States" that could solve the problem.
Roberts seems unconvinced. "Such invitations must be answered with care," he wrote. "Failure of political will does not justify unconstitutional remedies."
Indeed, a better solution to America's gerrymandering crisis would be for state legislatures to impose upon themselves—or to impose upon state redistricting commissions, where they are used—some sort of limitation for how much partisan mapmaking is tolerable.
Alternatively, states could move to fully outsource the redistricting process to tech firms capable of creating dozens or hundreds of different maps based on relatively simple sets of parameters—such as requirements that districts score below certain thresholds on different measurements. But it's probably right to be skeptical of the idea that state lawmakers and political parties would give up their ability to influence the redistricting process. These attempts to change the rules of redistricting are just another round of the same game. Beat us in the legislature and we'll beat you in the courts, is the message that Wisconsin Democrats seemed to be telegraphing throughout this process.
But courts should not be involved in giving partisan advantage to one team or the other. Roberts makes this point repeatedly, pointing to the fact that none of the plaintiffs in the case could prove they were directly harmed by the redistricting plan, and choosing to argue instead that they were harmed by how the redistricting plan affected the electoral chances of Wisconsin Democrats in general.
"That is a collective political interest, not an individual legal interest," writes Roberts. "And the Court must be cautious that it does not become a forum for generalized grievances."