Category Archives: Election Law

Federal court challenges political gerrymandering of state legislative districts.

Gerrymandering is a term used to describe the establishment of legislative or congressional election districts in a way that favors the party that controls the re-districting process.  The term was first coined to mock an early 19th Century governor of Massachusetts, Elbridge Gerry, whom the Boston Gazette claimed in 1812 was responsible for a state senate election district that resembled a salamander.  Crafting election districts for partisan advantage has been part of American political life throughout the country’s history, and Maryland’s current Congressional district map makes clear that the practice is alive and well.  Nationwide, however, partisan line-drawing today overwhelmingly favors Republicans, since that party controlled a greater number of state governments at the time of the most recent decennial census.

Historically, courts have been reluctant to interfere in the drawing of legislative districts, considering it to be an inherently political process that should be left to the legislative branch, without judicial interference.  About fifty years ago, however, the Supreme Court held that apportionment of legislative districts is subject to judicial oversight under the Equal Protection Clause of the U.S. Constitution.  The Court did not hold that political gerrymandering was unconstitutional across the board, but only that the drawing of legislative districts could not disadvantage minorities by having substantially different numbers of voters in different districts.  Since the 1960s, courts have intervened to ensure that votes of citizens are weighted equally.  If an apportionment scheme violates the principle of one-person-one-vote, it must be justified on the basis of other, permissible legislative considerations, under a high standard of judicial scrutiny.

It was not until the 1980s that the Supreme Court addressed a case in which a political party challenged an apportionment scheme based upon a claim of partisan advantage, as opposed to the protection of the principle of one-person-one-vote.  The Court issued plurality opinions in a 1984 case, and again in the early 2000s, which failed to bring clarity to whether, and under what circumstances, courts may overturn an apportionment plan that results in lopsided partisan advantage.  The state of the law regarding political gerrymandering has remained in flux.

In the 2012 elections, Republicans won 48.6% of the two-party vote in the State of Wisconsin, yet because of a gerrymandered apportionment plan they won 61 of the 99 seats in the state legislature.  In a lengthy 2-1 opinion issued on November 21, 2016, a three-judge panel of the U.S. District Court for the Western District of Wisconsin has now held that the legislative apportionment scheme enacted by the Republican legislature in Wisconsin violated both the First Amendment and the Equal Protection Clause of the 14th Amendment, because it’s aim was to deprive Democratic voters of their fair representation in the legislature.  This judicial order is unique because the court accepted use of a mathematical formula to measure the extent of political gerrymandering, which the plaintiffs in the case referred to as the “efficiency gap.”  The formula looks at the number of additional votes cast for the winning party’s candidate, beyond the number of votes cast by the losing side (in other words, the number of “excess” votes cast for the winner, beyond the number needed to win).  It divides this “excess” vote number by the total number of votes cast.  If parties cast the same number of “excess” votes across the state, the resulting number would be zero, which would be the ideal, non-gerrymandered outcome.  By developing a mathematical formula by which the political results of gerrymandering may be measured, this methodology gives opponents a means to persuade the Supreme Court to place constitutional limits on political redistricting.  Specifically, this quantification of the process is thought to be directed toward potentially gaining the vote of Justice Anthony Kennedy, whose past writings on the subject focused on this aspect.

Cases such as this one, heard by three-judge panels of a U.S. District Court, are subject to appeal directly to the Supreme Court, without an intermediate appeal to a Circuit Court of Appeals.  For this reason, this Wisconsin District Court decision could have profound effect on American elections relatively soon, should the Supreme Court take up the case after an anticipated appeal is filed.

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