October 2017 Preview | Gill v. Whitford

Case No. 16-1161 | W.D. Wis. Decision

He may not be a party to the suit, but looming over one of the most potentially momentous cases at the Court this term is Elbridge Gerry—Vice President, Governor of Massachusetts, and namesake of the practice of drawing voting districts for partisan advantage. In Gill v. Whitford, the Court may decide if the Constitution places any limits on the ability of legislators to draw districts favorable to their party.

The suit challenges the Wisconsin legislature’s plan for the State Assembly. Drawn after the 2010 elections, which placed Republicans in full control of Wisconsin’s state government, the map resulted in a large, persistent Republican majority. That majority, challengers argue, was no coincidence: in drawing the districts, the drafters focused almost exclusively on maximizing partisan advantage.

The district court struck down the map as unconstitutional under the First and Fourteenth Amendments. The court developed a three-prong test for determining when a partisan gerrymander is unconstitutional: discriminatory intent, discriminatory effect, and a lack of a neutral justification.

On appeal to the Supreme Court, the plaintiffs—supporters of the Democratic Party in Wisconsin—argue that the district court’s test for invalidating partisan gerrymanders creates a justiciable question. They argue that the court’s test is discernible because it states clear constitutional violations, proceeds from the premise of “partisan symmetry,” and is grounded in the Supreme Court’s redistricting case law. Moreover, they argue that the test provides judicially manageable standards that are limited enough so as not to require the Supreme Court to supervise redistricting decisions.

The State, in response, argues that the State Assembly map conformed to traditional redistricting principles. They read the Court’s precedents to foreclose judicial review of redistricting decisions, and argue that the plaintiffs did not articulate judicially manageable standards for reviewing the constitutionality of redistricting decisions.

Depending on how far-reaching a decision the Court issues, Gill v. Whitford could reshape electoral politics across the country or definitively halt any effort to resolve disputes over partisan gerrymandering in the courts. Alternatively, the Court could look for an exit ramp and dismiss the case for lack of standing, holding that Mr. Whitford’s injury is not fairly traceable to the Republican-drawn map because he lives in a district historically won by Democrats.