The Wisconsin gerrymandering case, Whitford v. Nichol, wrapped up Friday (5/27) following nearly a week of testimony. After the Department of Justice’s motion to dismiss the case was turned down for the second time in April, the case proceeded to federal court.
The plaintiffs, twelve Wisconsin residents, are suing over partisan redistricting that occurred after the 2010 census. The GOP won the state government and claimed the right to draw the district boundaries in 2011.
The plaintiffs argue that the new electoral boundaries drawn by the Republican majority discriminate against Democratic candidates and voters, and are thus unconstitutional because they waste votes. While the plaintiffs in this case are Democrats, gerrymandering cases are not always so. Republicans have also accused Democrats in state government of gerrymandering and sued for unconstitutional discrimination.
Gerrymandering is the purposeful drawing of districts in order to ensure the protection of a party's majority. It is often done through careful spreading of a party’s constituents, with the goal of winning more districts. The party in power boxes the minority party into concentrated districts, guaranteeing them a small number of seats.
Courts have yet been unable to establish a standard for partisan gerrymandering complaints.
In Davis v. Bandemer (1986), the Supreme Court appeared to determine that courts have the power to rule on redistricting cases. In the three decades since, no uniform guidelines have emerged to define or take action upon unconstitutional gerrymandering.
In the most recent cases, Vieth v. Jubelirer (2004), LULAC v. Perry (2006), and Session v. Perry (2006), half the Supreme Court justices declared that the court did not have the authority to rule on the constitutionality of redistricting practices, and the remaining justices proposed various ways to test for partisan gerrymandering.
Yet, in nearly all of these cases, including Whitford v. Nichol, the debate focuses on how gerrymandering affects two private political organizations and their members, but often fail to address the broader question of how all voters are affected. Opponents of gerrymandering argue that the practice prevents people from having an equal and meaningful say in the process.
The Wisconsin plaintiffs provided a gerrymandering test called the efficiency gap, developed by Nicholas Stephanopoulos of the University of Chicago Law School and Eric McGhee of the Public Policy Institute of California.
The efficiency gap provides the number of wasted party votes in an election. A wasted vote is defined as a vote cast for a losing candidate or cast for a winning candidate in excess (above 50 percent). Wasted votes compared to total votes determines if a party experiences a systematic advantage.
According to the Wisconsin report, after the 2011 redistricting, Wisconsin’s efficiency gap reportedly went up to 13 percent, where most states over the last 40 years have been at an average of 0 percent.
Other sources have found that gerrymandering effects can be greater. For instance, in 2014, Democrats won the popular vote but not Congress. The efficiency gap is just one test, which appears to mostly focus on the power dynamic between the Republican and Democratic parties.
What does a 13 percent efficiency gap mean for voters?
It means that 13 percent of the votes cast in Wisconsin during the 2012 election did not matter.
Reformers ought to be paying close attention to the Whitford v. Nichols trial. It provides an opportunity to settle whether the court has the power to rule on gerrymandering questions, as well as an opportunity to determine a viable test.
The plaintiffs must prove that Wisconsin State Republicans possessed discriminatory intent against Democrats when they drew maps. Then the court will determine if the redistricting resulted in an unconstitutional discrimination. The attorneys have been given the next few weeks to file post-trial briefs and responses, though no timeline was set for when the court’s decision is to be issued.
If the plaintiffs succeeded in making their case, there may be a gerrymandering test in place before the 2020 census and redistricting could face legitimate critique and change in the years to come. However, it remains to be seen if the cases will continue to focus on how the two major political parties are affected or if the arguments will become more voter-centric.