Gill v. Whitford Oral Argument Preview

Next Tuesday the Court will hear oral arguments in Gill v. Whitford, a controversial and widely anticipated case about partisan gerrymandering in Wisconsin. In addition to reviewing the district court’s analysis and holding, the Court will have to answer the basic question of whether partisan gerrymandering cases even present issues that courts are able to decide.

Amy Howe of SCOTUSblog has provided background into the case that Justice Ruth Bader Ginsburg suggests may be the “most important” case of the term. In 2011, following the 2010 census, the Republican-controlled legislature in Wisconsin passed a new legislative map. William Whitford, a retired law professor, filed suit after the 2012 elections. He alleged that the map favors Republican candidates and disadvantages Democrats to such an extent that it violates Democrats’ First Amendment right to freedom of association and Fourteenth Amendment guarantee of equal protection. Whitford argues that the Wisconsin Legislature deliberately decreased effectiveness of the Democratic vote by “cracking” some Democratic voters — breaking them up between Republican-dominated districts, thereby diminishing their electoral influence —  and “packing” other Democratic voters into a small number of districts that some argue was drawn to lock in Republican control. Supporting data shows inconsistencies between the number of voters and the electoral outcomes. For example, in 2008, before the maps were redrawn, Democrats won 57% of the vote for state assembly elections and controlled 52 seats in the assembly compared to the 46 held by Republicans. Four years later, however, Democrats won 52% of votes but retained only 39 assembly seats compared to the 60 seats held by Republicans. Check out The New York Times for more detailed information on the mapping and election results.

Defending the map, the state argues that partisan considerations have long been commonplace in drawing legislative maps and that the current districts are similar to the prior map, which were drawn in 2002 by the federal courts. The state also argues that Whitford lacks standing to challenge the 2010 map because his district has historically been held by Democrats, calling his claim a “subjective preference,” not a judicially cognizable injury. And the state argues that gerrymandering in general is a political question for state legislatures, not courts.

At the trial court level, a three-judge district court sided with Whitford, concluding that the plaintiffs had adequately established unconstitutional partisan gerrymandering. One judge dissented. The state then appealed to the Supreme Court.

This is not the first partisan gerrymandering case brought before the Supreme Court. In 2004 the Court heard Vieth v. Jubelirer, a case challenging partisan gerrymandering in Pennsylvania. The Court in Vieth declined to intervene in the issue. Four justices agreed that partisan gerrymandering is simply not justiciable. Justice Kennedy, who supplied the majority’s fifth vote, wrote that a “workable standard” needs to be offered before the Court should consider the constitutionality of politically motivated redistricting, leaving the door open to hear such cases again.

Whitford claims such a standard — called the “efficiency gap” — now exists and meets Justice Kennedy’s demand for a workable standard. This approach uses mathematical formulas to identify maps that involve “cracking” and “packing” of one party at a significantly higher rate than the other. This formula was proposed by two academics, Nicholas Stephanopoulos and Eric McGee. On the other hand, as Adam Liptak of The New York Times reports, the Republican National Committee has argued, in an amicus brief supporting the state, that the efficiency gap “is a tool that advances the partisan interests of the Democratic Party,” and that the high concentration of Democrats in cities, as opposed to the more even distribution of Republicans in cities and rural areas, is to blame for Democrats lack of electoral power.

A transcript of the oral argument is likely to be released on Tuesday afternoon, and audio of the argument will probably become publicly available on Friday, October 6.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.

Leave a Reply

Your email address will not be published.