This week, the Supreme Court will determine whether to hear a case, Gill v. Whitford, that could revolutionize how political districts are drawn. In a truly mind-boggling decision, the U.S. District Court for the Western District of Wisconsin bucked 30 years of Supreme Court precedent to find that Wisconsin’s state legislative map violates Democratic voters’ constitutional rights by insufficiently favoring the Democratic party. The Supreme Court should summarily reverse the lower court’s decision.
As the plaintiffs describe it, Wisconsin’s 2012 lines constitute “one of the worst partisan gerrymanders in modern American history.” Why? Because they failed to win roughly the same percentage of legislative races as their total statewide vote. Never mind the reality that Wisconsin Democrats cluster in Milwaukee and Madison, while Republicans are spread more evenly throughout the state. Never mind also that, as the Supreme Court recognized in the 1986 case Davis v. Bandemer, even a narrow statewide preference for a party can result in winning a large majority of seats in our winner-take-all system. To the plaintiffs, anything less than roughly proportionate representation — that is, Democrats winning the same percentage of seats as their statewide vote percentage — violates voters’ constitutional rights.
But that’s not how our democracy works. In our winner-take-all elections, a party could get 49 percent of the vote statewide and still win zero seats. One simply cannot compare statewide vote totals with the number of seats won in any given election.
Nor does the Constitution suggest that proportional representation is a goal, let alone a requirement. To quote the Supreme Court’s 2004 plurality opinion in Vieth v. Jubelirer, the Constitution,
Guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.
The most fatal flaw in the lower court’s decision, though, is that the Supreme Court effectively has ruled out partisan gerrymandering claims altogether. In Bandemer, the Supreme Court found such claims to be justiciable in theory but could not agree on any “judicially discernable and manageable standard” to use in adjudicating them. In 2004, after “eighteen years of judicial effort with virtually nothing to show for it” as far trying to identify a clear standard goes, the plurality in Vieth threw up its hands and found political gerrymandering claims to be non-justiciable, period.
It is in this context that the plaintiffs propose a “new” test for political gerrymandering claims — whether a map treats the major parties “symmetrically” in how “efficiently” they convert votes into seats. Using the “efficiency gap” theory developed by one of their attorneys, they argue that, in districts where candidates win by a lot or lose by a little, there is an “inefficiency” that suggests a violation of plaintiffs’ constitutional rights.
As the district court’s dissenting judge rightly argued, this approach has “substantial theoretical and practical limitations that render it unsuitable for the task at hand.” In particular, this approach assumes a “phantom constitutional right” to proportional representation that simply does not exist in our winner-take-all system. Furthermore, it ignores that numerous factors affect how a party performs in any one election, including the quality of individual candidates. Despite this, plaintiffs want the courts to determine after the fact whether a map was constitutional based on how well a party performed. That’s simply unworkable.
Instead, the district court adopted its own test, asking if the lines were drawn with discriminatory intent and had an unjustified discriminatory effect. This is nothing new and simply mirrors an approach that the Supreme Court rejected in Vieth. The district court should have followed this precedent and rejected the plaintiffs’ claims outright.
After all, redistricting is an inherently political process. The Constitution gives the power to draw district lines to state legislatures. The framers of the Constitution could have vested that power in courts or unelected commissions, but they didn’t. Instead, they entrusted it to elected officials whom voters can hold accountable. The courts’ adoption of an ad hoc test to determine whether legislators are “too partisan” in exercising a constitutionally prescribed function would raise serious separation of powers issues.
If the lower court’s decision stands, every single redistricting plan in the country will be open to challenge by whatever party happens to lose the most elections that year. Courts will be flooded with lawsuits by political actors trying to game the system for selfish partisan advantage. That’s bad for the courts and even worse for our elections. The Supreme Court should reverse.
Matt Walter is President of the Republican State Leadership Committee.