Legal Sidebari
Supreme Court To Hear Partisan
Gerrymandering Case On October 3
October 2, 2017
On October 3, 2017, the U.S. Supreme Court will hear oral arguments in Gill v. Whitford, a case that
could significantly impact how congressional and state legislative redistricting maps are drawn. In Gill,
the Court has been asked to establish a standard for determining whether a redistricting map is an
unconstitutional partisan gerrymander under the Equal Protection Clause of the Fourteenth Amendment
and the First Amendment. The Court has defined partisan gerrymandering as “the drawing of legislative
district lines to subordinate adherents of one political party and entrench a rival party in power.” A
decision in this case is anticipated by June 2018.
Although the Supreme Court has invalidated redistricting maps as unconstitutional racial gerrymanders,
the Court has not overturned a map because of partisan gerrymandering. In prior cases presenting a claim
of unconstitutional partisan gerrymandering, the Court has left open the possibility that such claims could
be judicially reviewable, but has been unable to determine a manageable standard for adjudicating such
claims. For example, in a 2004 decision, Vieth v. Jubelirer, a plurality of four Justices determined that a
claim of unconstitutional partisan gerrymandering presented a nonjusticiable political question, while four
other Justices concluded that such claims are justiciable, but could not agree upon a standard for courts to
use in assessing such claims. The deciding vote in Vieth, Justice Kennedy, concluded that the claims
presented in Vieth were not justiciable because neither comprehensive, neutral principles for drawing
electoral boundaries, nor rules limiting judicial intervention, exist. Nonetheless, he “would not foreclose
all possibility of judicial relief if some limited and precise rationale were found to correct an established
violation of the Constitution in some redistricting cases.”
Gill is an appeal from a federal district court panel decision holding, by a 2-to-1 vote, that a Wisconsin
state legislative redistricting map is an unconstitutional partisan gerrymander. (A provision of federal law
provides for direct appeals to the Supreme Court in cases involving constitutional challenges to
redistricting maps.) According to the district court, the Equal Protection Clause of the Fourteenth
Amendment and the guarantees of free speech and association under the First Amendment prohibit a
redistricting map that is drawn with the purpose, and has the effect, of placing a “severe impediment” on
the effectiveness of a citizen’s vote that is based on political affiliation and cannot be justified on other,
legitimate legislative grounds. Although the redistricting map complied with traditional redistricting
principles—which include contiguity and compactness—based on the record in the case, the court held
that the map nonetheless had a purpose and effect of entrenching one party in its control of the legislature
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without justification. Shortly after agreeing to hear this dispute, by a vote of 5 to 4, the Supreme Court
issued a stay of the lower court’s decision.
Under the challenged map, the majority noted that a disparity existed between the share of a party’s vote
and the power that party wielded. For example, in the 2012 election, “the Republican Party received
48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the
Wisconsin Assembly,” and in the 2014 election, “the Republican Party received 52% of the two-party
statewide vote share and won 63 assembly seats.” In assessing the asymmetry among districts, the court
utilized a new measure, which had been proposed by the plaintiffs, termed the “efficiency gap” or “EG.”
As described by its creators, the EG “represents the difference between the parties’ respective wasted
votes in an election—where a vote is wasted if it is cast (1) for a losing candidate, or (2) for a winning
candidate but in excess of what she needed to prevail.”
In contrast, the dissent criticized the “entrenchment test” that had been adopted by the majority, arguing
that it offers no improvement over other tests that the Supreme Court has already rejected. Further, the
dissent denounced the EG—or any measure that is a simple comparison of statewide votes to seats won—
as the “enshrinement of a phantom constitutional right” that voters for one party are entitled to
representation proportional to the number of votes won by each party’s candidate in every district
throughout the state.
In the Supreme Court, the parties have submitted briefs proffering arguments on both procedural grounds
and the merits of the case. As a threshold matter, the appellants—members of the Wisconsin Elections
Commission—argue that the district court lacked jurisdiction because statewide claims of partisan
gerrymandering are nonjusticiable. The Elections Commission further asserts that the appellees have
failed to state a claim upon which relief can be granted by not articulating a limited and precise legal
standard. Finally, the Election Commission argues that the challenged map should be upheld because it
comports with traditional redistricting principles, emphasizing that Justice Kennedy stated in Vieth that
any standard for adjudicating partisan gerrymandering claims would need to establish that the legislature
drew districts “in a way unrelated to any legitimate legislative objective.” In contrast, the appellees—
registered voters in Wisconsin—argue that they have standing to bring a statewide challenge to the
redistricting map because, unlike racial gerrymandering claims that are district-specific, partisan
gerrymandering claims involve the “completely different harms” of subjecting voters to vote dilution and
viewpoint discrimination on a statewide basis. Furthermore, they maintain that partisan gerrymandering
claims are justiciable under the test articulated by the lower court requiring a finding of discriminatory
intent and effect, lacking any legitimate justification by the legislature. Among other arguments, these
voters assert that the test is judicially discernible because it is based on the “comprehensive and neutral
principle” of partisan symmetry, as determined by measures such as the EG, whereby maps treat parties
symmetrically by enabling them to translate their support into legislative representation. In addition, they
maintain that the test is judicially manageable because, among other things, it is neutral and limited, with
an effect prong that is easily administered. The appellee voters also counter the argument from the
Elections Commission that compliance with traditional redistricting principles serves to protect a
redistricting map from a claim of unconstitutional partisan gerrymandering, arguing that Court precedent
belies such a contention.
The Supreme Court’s ruling in Gill v. Whitford could have major consequences for pending and future
claims of partisan gerrymandering. The Court could rule in a variety of ways. As a threshold matter, the
Court could find that the challengers to the redistricting plan lack standing, dismissing the case for
procedural reasons. Similarly, invoking other procedural grounds for dismissal, the Court could reject the
standards that the lower court applied in this case and hold that claims of unconstitutional partisan
gerrymandering present a nonjusticiable political question, thereby foreclosing all such claims in the
future. Notably, the issuance of a stay in this case might indicate a greater likelihood that the Court will
rule in favor of the Elections Commission because a key factor a court will consider in deciding to issue a
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stay is whether there is a strong showing of likely success on the merits. On the other end of the
spectrum, and perhaps of greatest significance, the Court might agree with the standards that the lower
court applied or identify different standards for courts to use in evaluating future claims of partisan
gerrymandering. Such a change to Court precedent would likely result in additional challenges to
congressional and state legislative maps nationwide, and impact how maps are drawn during the next
round of redistricting that follows the 2020 census.
For additional reading, see Congressional Redistricting Law: Background and Recent Court Rulings and
Supreme Court October Term 2017: A Preview of Select Cases.
Author Information
L. Paige Whitaker
Legislative Attorney
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