Professor Richard Briffault Discusses the Supreme Court’s Review of Partisan Gerrymandering

The U.S. Supreme Court has agreed to consider the constitutionality of efforts by lawmakers in Wisconsin to redraw legislative districts along partisan lines in a case that could upend the electoral map nationwide.

The appeal, Gill v. Whitford, affords the justices an opportunity to take up the topic of partisan gerrymandering for the first time in 13 years and marks the latest in a line of cases that arise from efforts by Republicans and Democrats to shape the political geography to their advantage, as Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, reviewed recently at a workshop with colleagues and visiting scholars.

Briffault, whose research, writing, and teaching focus on state and local government law, legislation, and the law of the political process, is co-author of the textbook, State and Local Government Law. He currently serves as both the reporter for the American Law Institute’s project on principles of government ethics and as chair of the New York City Conflicts of Interest Board.

In the Q&A that follows, Briffault discusses some of the issues at stake.

This interview was lightly edited for clarity and space.

Is drawing up districts by political affiliation unconstitutional?

We know from the Supreme Court’s rulings over the past 25 years that districts drawn with race as a predominant motive violate the Equal Protection Clause, which prohibits states from discriminating based on race and other suspect classifications. Does that imply a claim when a dilution of votes is based on party affiliation?

The answer depends on how the justices view the analogy between race and party affiliation. In the Vieth case in 2004, four justices rejected the analogy, while Justice Kennedy suggested reframing the violation around the First Amendment if a gerrymander has the effect of imposing burdens on one party and its voters. Two of three judges at the lower court in Gill agreed. They said that both the First Amendment and Equal Protection Clause prohibit redistricting that is intended to place a “severe impediment” on the effectiveness of citizens’ votes based on those voters’ political affiliation, provided the redistricting has that effect and can’t be justified on legitimate legislative grounds.

How would a court assess when gerrymandering becomes partisan?

That’s the challenge here. In the case of racial gerrymandering, you can fall back on a substantive principle: The Court has ruled that excessive attention to race in districting is unconstitutional. But how do you formulate criteria in the case of a partisan gerrymandering?

You need a standard that can distinguish acceptable partisan intent from excessive partisan intent. Redistricting is an inevitably partisan process. We presume legislators will try to favor their party’s interest. How do you decide when it’s excessive? Also, courts tend to look for evidence of harm. But nobody has the right to be in the majority in their own district, so you need to show something was done that impinged on your rights as a member of the weaker political party that goes beyond not being able to win an election in a specific district. One thing we know is that the standard needs to be more than a lack of proportional representation, which has never been required and is difficult to achieve in a system of single-member districts.

Let’s talk about the Wisconsin case. Is there any data to support the argument that the gerrymandering was excessively partisan?

The theory the plaintiffs put forward is that the evidence shows that in the two elections at issue, Republicans allocated their votes much more efficiently than did Democrats, as measured by a so-called efficiency gap. More Democrats were either “packed” into heavily Democratic districts or “cracked” into districts where they would be a minority. On a map drawn with regard for both parties, the gap would be near zero. The map in Wisconsin produced an efficiency gap of 13.3 in percent in 2012 and 10 percent in 2014.

An analysis by the plaintiffs suggests that gaps above 7 percent are likely to persist throughout life of the redistricting plan. The opposition says that no one is making voters vote Democratic or Republican and that voters can change their minds.

Table created by Professor Briffault.
Is this argument likely to hold sway with the Court?

Maybe, but not necessarily. The efficiency gap is a measure of partisan asymmetry that the plaintiffs hope will appeal to Justice Kennedy, who in Vieth expressed hope that methods of analysis might emerge that highlight more precisely the burden that gerrymandering imposes on voters and parties.

The efficiency gap also has the benefit of being relatively straightforward and easy to understand. It has the advantage of addressing differential competitiveness, as opposed to proportional representation or the shape of the district itself. It may be a signal there’s something funny going on that can’t be explained by the state’s political geography.

Still, the measure confronts the justices with a series of questions. Is partisan asymmetry a constitutional principle? How big a gap is too big? Does the measure rely too heavily on data analysis and predictions of future elections? As with all partisan gerrymandering claims, does it presume too much about the immutability of party affiliation and the predictability of party voting? And can the efficiency gap address a political reality in which Democratic voters tend to live in more densely populated areas?

The litigations about partisan gerrymandering all involve cases where one party controls both houses of the legislature and the governorship. That mattered to the Gill majority, which focused on the aggressiveness of the redistricting and the secretiveness of the process. Now we’ll learn what the justices think.

Further reading
Faculty Dissect and Discuss Trump Public Law Cases in Summer Workshop Series


Posted on June 30, 2017