Gill v. Whitford, a case considering partisan gerrymandering in Wisconsin, is currently being considered in the Supreme Court. If the court rules in favor of the Plaintiffs, we could see sweeping changes across electoral districts in all 50 states.
The case filled by the Campaign Legal Center, on behalf of 12 registered democrats, argue that electoral districts in Wisconsin violates equal protection guaranteed under the 14th amendment.
In simpler terms, the plaintiffs are accusing the state election board of gerrymandering, or drawing districts in a way that ensures greater representation of one party regardless of voting.
David Andersen, political science professor at Iowa State, shares that the US has a complex history with gerrymandering. With new congressional districts being drawn every 10 years parties have always been trying to gerrymander according to Andersen.
“The big difference is today we’re much better at it,” Andersen said, “With computing power and the data we have today we are much better at drawing districts to ensure one party will win.”
This is not to say all states face as stark of a threat to the integrity of their democracy as Wisconsin. Many states use bipartisan or nonpartisan boards of officials to draw districts. Iowa has a unique system where a nonpartisan team of legislative staff draw districts without looking at political or election data.
Andersen also adds that at the federal level there are no restrictions on partisan gerrymandering.
“Right now, the only guidelines on gerrymandering is you cannot gerrymander to hurt a racial group,” Andersen said.
Many, including Andersen believe that action needs to be taken on clear cases of partisan gerrymandering like in Wisconsin.
“If we’re going to have a democratic system we have to make sure the rule of majority comes through,” Andersen said.
In Wisconsin’s 2012 election for its state assembly, Republicans received 49% of the vote share but 60% of the seats in the State Assembly. Andersen believes cases like this show that gerrymandering allows a party not actually in the majority to hold an unjustified amount of power.
“They didn’t have a majority but they have a super majority of power,” Andersen said.
In the 2004 supreme court case, Vieth v. Jubelirer, over partisan gerrymandering in Pennsylvania, the court was split into two groups. Four justices wanted to take action on Pennsylvania’s districts but disagreed on how to judge partisan gerrymandering. Another four believed it was impossible to judge partisan gerrymandering, and therefor did not want to take action. Justice Anthony Kennedy sat in the middle.
While Kennedy eventually decided to not to take action, he stated he believed a standard could be found to judge Gerrymandering. Now in Gill v. Whitford a new judging method, developed in 2014, called the efficiency gap is being used as a way to judge partisanship.
The efficiency gap works by determining the number of “wasted votes”, or votes not needed for a candidate to win, and comparing them by party. Wasted votes are inevitable, but the idea is they should be split evenly by party. In 2012, there was a 10% efficiency gap benefiting Republicans in Wisconsin.
David Andersen believes the efficiency gap can be a good first step when it comes to judging partisanship. However, due to the ideological split of the court, many are expecting the final decision to come down again to Kennedy’s opinion on the matter.
“I think in this case he will finally say there should be a limit to how much gerrymandering we permit,” Andersen said.
If Kennedy does decide to agree with Andersen and his more liberal colleagues, Wisconsin would see it’s districts redrawn and would open up the door to other cases using the efficiency gap to challenge partisan districts in courts.
This however brings up a criticism from the more conservative wing of the court. Chief Justice John Roberts claimed that if the court decided to take action in Wisconsin, it would bring more redistricting challenges to the Supreme Court and harm the court’s credibility.
Andersen believes this is a very fair fear for Roberts to have, however he believes now is the time for the Supreme Court to act on the issue rather than leaving it to other branches of government.
“The other branches have had an opportunity to deal with it, and haven’t. I think at this point the Supreme Court is the branch of last resort,” Andersen said.