Reading Tea Leaves from Arguments in Gill v. Whitford: 5 Lessons from an Election Law Revolution

In Wisconsin, legislative assembly elections are like Alice – they’re through the looking glass.  After redistricting in 2011, Wisconsin Republicans lost the popular vote for legislative seats with only 49% of the votes cast.  Nevertheless, they still won 60% of the seats.  When they later won the popular vote with 52% of the vote, their advantage in the legislature grew to 64% of the seats.

What magic accounts for this “heads I win, tails you lose” electoral voodoo?  Big Data gerrymandering.  Wisconsin Republicans retreated to the safe confines of a law firm’s conference room where they used data modeling to precisely draw district boundaries.  Not only was the process secret from the public, legislators who came to visit the law firm to see their own proposed district boundaries signed confidentiality agreements.  From this dimly lit process emerged numerous draft boundary maps, each one more carefully drawn than the last, to ensure an enduring Republican majority in the legislature.

And it worked.  (Lest one think that only Republicans would wallow in this sort of skullduggery, the instinct to overreach appears to be a bipartisan one – Democrats in Maryland have stuck the knife in pretty well themselves.)

All of that, in today’s Supreme Court arguments, isn’t much in dispute.  What’s in dispute is whether the Constitution cares about it.  Challengers say the First Amendment’s right to association is infringed by this over-bearing partisan gerrymandering.  So, too, are voters’ Equal Protection rights to have their votes counted equally.  Here’s a fuller read on the lower court ruling that’s been appealed by Wisconsin to the Supreme Court.

Gill v. Whitford could change American politics and election law for a generation.  Here are five lessons from today’s oral argument.

Lesson 1: If Wisconsin’s Gerrymandering is Struck Down, It’s Going to be in a Narrow Ruling.

Challengers to the Wisconsin gerrymander pointed out at length today that the Wisconsin map they don’t like is a historical outlier.  Experts testified at trial that the map resulted in among the most distorted partisan maps they’d ever reviewed.  Statistical analysis pegged these maps as among those most intended to give a partisan advantage and most calculated to make the partisan advantage enduring.

Political considerations, generally, won’t doom a district drawing.  But counsel for the challengers, Paul Smith, agreed with Justice Kagan that “outlier” maps are the sort of gerrymanders that ought to be ripe for being struck down.  Maps set by courts, or by a bipartisan commission, or otherwise established outside “one-party rule” in a state, aren’t the sort of boundary settings that should be susceptible to a Constitutional partisan gerrymandering challenge.

All of which is to say that challengers to gerrymandering didn’t ask the Court to take politics out of redistricting.  The Court, even if it rules against Wisconsin’s map, is almost certain to limit its holding to the most extreme cases of gerrymandering.

Lesson 2: Justice Breyer has a convenient four-part test to stop partisan gerrymandering.

Justice Breyer suggested a four-part test to gauge whether a legislature has unconstitutionally discriminated on partisan grounds.  Justices Ginsburg, Kagan, and Sotomayor all seemed to like the test.  Smith, for the challengers, embraced it as well.

Breyer explained that he was positing a test to try and draw out some practical implications of complex social and political science.  Breyer, like nearly all the Justices who spoke (Justice Thomas’s renewed streak of oral argument silence is alive and well) was looking for a “manageable” way for courts to evaluate gerrymandering.  Here’s Breyer’s suggestion:

  1. Was the map drawn by one party in control of re-districting? If not, full stop.  Do not pass go, do not collect $200, do not strike down the map.
  2. Did the map result in “partisan asymmetry”? That is to say, are the results of the district drawing substantially at odds with how the voting turned out?  If not, the test is over – challengers lose.
  3. Will there be a persistent partisan asymmetry? Is the line drawing likely to preserve a disproportionate partisan advantage for a long period of time?  Again, if not, the districts survive.
  4. Finally, is there any legitimate justification for the district drawing that outweighs all those concerns? If so, then the redistricting stands.

If some semblance of this test ultimately garners five votes (that’s a pretty big if) on the Supreme Court, the Court may send the case back to Wisconsin with instructions to the lower court to apply the four-part test.

Lesson 3: The conservative justices don’t like Justice Breyer’s four-part test that much.

Chief Justice Roberts and Justices Alito and Gorsuch were, to say the least, healthily skeptical.  Roberts described the statistical analysis that challengers say proved Wisconsin’s partisan bias as “sociological gobbledygook.”  (Even Justice Breyer, who thinks the data’s important, is fine calling it “gobbledygook.”)

Justice Alito is also skeptical that courts should be involved in the business of second-guessing the inherently political choices of legislatures.  Social scientists have been looking for a magic formula to discern unfair partisanship for decades and Justice Alito doesn’t think the Efficiency Gap analysis, identified just three years ago, and the partial basis for challenging the Wisconsin gerrymander, is sufficiently tested and examined for it to be the predicate for a Constitutional challenge.  (Here’s an explanation of the Efficiency Gap which, as attorney Smith pointed out, isn’t as complicated as some would characterize it.)  Alito also noted that politicians can rely on speculation and unreliable data like polls.  Wisconsin Solicitor General Misha Tseytlin agreed that while politicians are allowed to speculate and guess when it comes to politicking – courts can’t when it comes to deciding Constitutional questions.

Justice Gorsuch, affable and bright on the bench and not sounding at all like he’s nervous in his new job, asked repeatedly how state legislatures can tell if their partisan considerations cross a Constitutional line.  Is the threshold for a violation a 7% Efficiency Gap or some other number?  That line of questioning might sound like a request for clarity.  It’s probably better understood as skepticism that any Constitutional rule ought to be reduced to a statistical formula.

The Chief Justice took up this reasoning as well making the point that the United States has never guaranteed parties’ proportional representation in legislative bodies.  That’s a hallmark of a parliamentary system, but not ours.  Lawyer Smith replied that challengers aren’t seeking proportional representation, but symmetrical voting districts – if one party gets a great result with a so-so vote, then the other party ought to also get a great result when they get a so-so vote.  For Smith and challengers, the asymmetry of Wisconsin’s system is its cardinal sin.  Justice Kagan found this argument “intuitive and attractive.”  The Chief Justice didn’t yet seem persuaded.

The Chief Justice was also concerned, as he often is, with the institutional integrity of the Supreme Court.  He worried that nearly every district boundary setting will be appealed to the Supreme Court and that the Court will be asked to decide whether Democrats or Republicans will win or lose.  That knee-deep engagement in partisanship will bring the Court into disrepute.

Roberts worried that ordinary, reasonable Americans won’t think the Court engaged in an analysis of a 7% Efficiency Gap, a “gobbledygook” concept with which they’re unfamiliar, when the Court disapproved or approved a voting district.  Rather, they’ll think the Supreme Court started picking winners and losers in elections.  (No one today had the poor taste to mention Bush v. Gore, but only because no one had to.)  Smith also replied that the courts already are in the mix in districting cases and that the greater fear should be the systemic failure of American democracy.

Which bring us to….

Lesson 4: Democracy is precious and it’s at risk.

Justice Ginsburg asked what would happen to the “precious” right to vote if Wisconsin-like partisan gerrymandering grew broadly acceptable.  If elections are foregone conclusions, what’s the point in having them?  Justice Sotomayor echoed the same sentiment and worried that a system of voting where parties that lose popular votes still wield power could be harmful to democracy.

Sotomayor asked Erin Murphy, counsel for the Wisconsin Senate, what value there is to partisan gerrymandering.  Murphy answered that it helped voters understand the politics that governed them and helped ensure accountability.  Sotomayor dismissed these points as, essentially, nonsensical and said she didn’t understand how either of those virtues were furthered by partisan gerrymandering.  No other Justice took up that argument for Wisconsin.

Smith pled, at the end, for the Supreme Court to intervene. Craven politicians can’t be trusted, he said, to fix gerrymandering on their own.  Their parochial interests will override their good government instincts.  If politicians can solidify their power, they can be trusted to do that almost every time.  Smith said only the Supreme Court has the ability and legitimacy to stop the pernicious practice of politicians setting district boundaries that entrench their power and render ordinary voting processes a futile and disillusioning waste of time.

Lesson 5: There may be a path for a 6 or 7 vote majority to limit partisan gerrymandering.

Although Justice Alito wondered aloud whether the science concerning partisan gerrymandering was sufficiently tested, he did seem to acknowledge that if the legislature adopted a standard to favor one party over another, that standard was at least “manageable.” Chief Justice Roberts also seemed open to the argument that a hypothetical voter in southern Wisconsin might have standing to object to a northern Wisconsin district’s partisan discrimination on the grounds that voters all over the state have an interest in seeing their own party’s collective fortunes rise.

If you squint a little, you can see a future ruling that shows some very tepid agreement from Roberts and Alito that some outlier-level of partisan gerrymandering could be the sort of thing that can be litigated.  You don’t have to squint as hard to foresee all four of Breyer, Sotomayor, Ginsburg, and Kagan voting to limit partisan gerrymandering.  Add some bailing wire and chewing gum, and you might find yourself with a narrow holding that Wisconsin’s gerrymander is unlawful or at least might be when examined in the right light.

What might tip Roberts or Alito to the challengers’ camp?  As with most questions concerning the Supreme Court, the first guess is often the best guess: Kennedy, Kennedy, Kennedy.

Justice Kennedy is widely reported to be rumored to be thinking about considering perhaps, maybe, hypothetically retiring.  His opinion and vote in this case may be among the most momentous of his career.  That’s particularly the case if he’s persuaded that he’s being asked to save our democracy.

Was he persuaded?   I don’t know, but I think so.

Early on in the argument, Kennedy asked Lawyer Murphy, arguing for the Republican controlled Wisconsin Senate, if the legislature could Constitutionally use a district boundary setting system that had two features: (i) boundaries should be set according to traditional neutral criteria and (ii) boundaries should, above all, protect the party in power.  Murphy, in Kennedy’s estimation, didn’t answer the question so, before she left the lectern, he asked her again.

Her answer may have been the most important exchange of the morning.  She ultimately conceded: “Yes. It would be an unconstitutional, if it [partisan discrimination] was on the face of it [the redistricting plan], and I think that that would be better thought of probably as an equal protection violation, but you could think of it just as well, I think, as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure … .”

When Murphy agreed that it’s unconstitutional for a legislature to decide, above all, to protect one party’s interests, even if it was otherwise crafting appropriate districts, she essentially conceded that Wisconsin acted unconstitutionally in this case.  There seemed little doubt among any of the advocates or Justices that Wisconsin played the hardest hardball it could when creating Republican districts. It kept the process secret, it modeled a variety of maps, and, as Justice Sotomayor noted, its “estimates” of Republican triumph in winning legislative seats, notwithstanding disproportionately small popular vote shares, proved spot-on accurate.

If Justice Kennedy wants to accept it, he has his answer. Wisconsin’s legislature used the best data tools available to it to protect and grow a legislative majority regardless of how the voting played out.  The Court as a whole seemed to struggle with what to make of this brave new world of regression analyses and data modeling.  But the Justices seemed to understand, as Lawyer Smith put it, that today’s district drawing “isn’t your father’s gerrymandering.”

We’ll know in the coming months what path the Court will choose.  Will it retreat from the fight against partisan gerrymandering and leave it to be fixed by the very politicians who worked so hard to preserve their power against the wishes of most voters?  Or will the Court choose to wade into the fight at the peril of risking its own legitimacy?  Is the Court persuaded that it has to enter that fight to preserve democratic norms or that democratic norms require it to sit the fight out?

Lawyers know that predicting the outcome of a case based on oral argument is a sucker’s bet.  And I’m no sucker.  But I think the Wisconsin legislature may have to make some revisions to its voting maps.