Can Democrats Still Contest Gerrymander?
Strange Supreme Court decision on Wisconsin redistricting leaves some room for hope.
The Chief Justice’s decision has three parts. All nine justices joined the first two parts. The very short third part, sending the case back to the district court panel, is rejected by two justices. Justices Clarence Thomas and Neil Gorsuch “would have remanded this case with instructions to dismiss.” The fact that no other justice joined Thomas and Gorsuch in wanting to dismiss the case outright may be a hopeful sign. In an earlier gerrymandering case (“Vieth”), four justices joined in an opinion that, had one more justice joined in, would have put the court on record as declaring gerrymanders immune to challenge.
In this case the challenge was brought by a group of Democrats who argued that the gerrymander affected them especially badly by diluting their vote. The circuit court agreed that “The concern here … is the effect of a statewide districting map on the ability of Democrats to translate their votes into seats. The harm is the result of the entire map, not simply the configuration of a particular district. It follows, therefore, that an individual Democrat has standing to assert a challenge to the statewide map.”
The Supreme Court disagreed with the circuit court, concluding that the plaintiffs had not shown that they were especially harmed by the gerrymander. Rather than looking at the harm caused by weakening the ability of Democrats to translate votes into policy, Justice Roberts concentrates on the harm to those residing in districts which were “packed” or “cracked.”
In a gerrymander like Wisconsin’s, the party doing the gerrymander packs as many of the other party’s voters as possible into a relatively small number of districts. This allows it to add enough of its own voters to other districts to give it comfortable majorities.
The next two charts show cracking and packing under the Wisconsin gerrymander. To estimate the relative strength of each party in each assembly district, I used the 2008 and 2012 presidential vote in each district with the Republican vote adjusted upward (and the Democratic vote downward) such that the overall vote statewide was tied. Using the presidential vote, rather than that for Assembly candidates addressed several issues:
- In a large number of Assembly races—about half in the 2012 election—only one party fielded a candidate.
- Even if both parties fielded a candidate, if voters thought that their candidate had no chance of winning they might decide not to vote
- Conversely if they thought their candidate was sure to win they might decide it was safe to skip voting.
- Finally, the result in the individual race might reflect the strength—or weakness—of the particular candidates, rather than partisan preference.
The next graph is aimed at identifying districts that were packed by the Wisconsin gerrymander. The horizontal axis shows the percentage of the adjusted vote for Obama in 2008; the vertical shows the Obama percentage in 2012 after the gerrymander. Districts above the diagonal line received more Democratic votes in 2012 than 2008. All but four did so.
The next graph shows cracked assembly districts, the 13 districts that were flipped from Democratic to Republican by the gerrymander. For example, in district 61 the Democrat ran unopposed in 2008; in 2012 a Republican won the seat.
District 22 included parts of Ozaukee and Milwaukee counties. In 2008 a Democrat won. Then most of Milwaukee was stripped out, leaving only River Hills; in 2012 no Democrat bothered to run.
The Wisconsin gerrymander has led to a decrease of political competition in Wisconsin. The next chart shows the numbers of assembly districts where both parties fielded a candidate (in green) and where one party did, in blue for Democrats and red for Republicans. In the most recent election only 50 of the 99 seats were contested. It appears that the 2012 election results taught potential Democratic candidates a lesson about the futility of running in the districts that had been made safe for Republicans.
The next chart shows the number of districts that could be classified as competitive, safely Republican, or safely Democratic before and after the gerrymander, based on the adjusted president results. Competitive districts were defined in which the winner received 54% or less of the two-candidate vote.
There were far fewer seats in play following the gerrymander than before. Republicans were the main beneficiaries of the decrease in competitive seats.
In a recent editorial the Journal-Sentinel expressed the hope that the legislature could be convinced to establish a non-partisan redistricting process. Such a hope seems naïve. It is clear from the graph above that this would result in many legislators—particularly Republican legislators—losing their jobs. There are few other activities in which the conflict of interest is so extreme as when legislators map their own district lines.
The next graph shows the makeup of the Wisconsin Assembly by whether the members faced a challenge from the other party in the 2016 election. Not only were Democrats in a distinct minority, but few of them had the experience of debating with a Republican opponent.
The Supreme Court’s requirement to establish standing is nothing new. The issue is why a Democrat who has shown a bias against Democrats needs to further establish standing.
However, let’s assume that Chief Justice Roberts is sincere in his expressed desire to hear from voters in cracked and packed districts. As he wrote: “In this gerrymandering context that burden arises through a voter’s placement in a ‘cracked’ or ‘packed’ district.”
The fact that the designers of the Wisconsin gerrymander started with the existing districts and cracked or packed them makes it easy to identify who lives in those districts. Justice Elena Kagan gives two reasons those voters are harmed: “When a voter resides in a packed district, her preferred candidate will win no matter what; when a voter lives in a cracked district, her chosen candidate stands no chance of prevailing.”
Justice Kagan also suggests a second possible route to standing, emphasizing the burdens the gerrymander places on the First Amendment right to associate. “The plaintiffs joining in this suit do not include the State Democratic Party (or any related statewide organization),” she wrote. “They did not emphasize their membership in that party, or their activities supporting it.”
Whether either approach to establishing standing would convince a majority on the court remains to be seen.
More about the Gerrymandering of Legislative Districts
- Democrats Refile Redistricting Suit - Shawn Johnson - Sep 16th, 2018
- Amended Whitford Complaint Highlights Harm Caused by Wisconsin’s Partisan Gerrymander to 40 Plaintiffs Across 34 Districts - Campaign Legal Center - Sep 14th, 2018
- The State of Wasted Votes - Malia Jones - Jul 2nd, 2018
- Data Wonk: Can Democrats Still Contest Gerrymander? - Bruce Thompson - Jun 27th, 2018
- The State of Politics: Democrats Rejected Redistricting Reform - Steven Walters - Jun 25th, 2018
- Supreme Court Punts on Gerrymandering - Shawn Johnson - Jun 18th, 2018
- Republican State Leadership Committee: The Efficiency Gap is “Sociological Gobbledygook” - Republican State Leadership Committee - Jun 18th, 2018
- Response to Gill v Whitford decision to remand back to trial court - Fair Elections Project - Jun 18th, 2018
- The Art Of Gerrymandering Milwaukee - Malia Jones - Jun 9th, 2018
- The Push for Nonpartisan Redistricting - Cathleen Draper - Jun 5th, 2018
- U.S. Supreme Court Nears Decision on Wisconsin Redistricting Case - Cathleen Draper - Jun 2nd, 2018
- Data Wonk: Many Republicans Oppose Gerrymandering - Bruce Thompson - Mar 14th, 2018
- The State of Politics: Will U.S. Supremes Rule on State Districts? - Steven Walters - Feb 19th, 2018
- Back in the News: Majority Now Backs Fair Redistricting - Bruce Murphy - Feb 5th, 2018
- Data Wonk: John Roberts’ Nightmare - Bruce Thompson - Oct 11th, 2017
- The State of Politics: You Be The Judge on Redistricting - Steven Walters - Oct 2nd, 2017
- Op Ed: U.S. Supreme Court Should End Partisan Gerrymandering - Andrea Kaminski - Sep 26th, 2017
- Data Wonk: Judges Consider a Democratic Gerrymander - Bruce Thompson - Aug 30th, 2017
- Op Ed: 24 Counties Have Voted for Fair Maps - Matt Rothschild - Aug 25th, 2017
- Data Wonk: Right Wing Seeks to End Democracy? - Bruce Thompson - Aug 23rd, 2017
- Data Wonk: US Supreme Court Wrong on Redistricting? - Bruce Thompson - May 31st, 2017
- Op Ed: Save Taxes With Nonpartisan Redistricting - Andrea Kaminski and Lindsay Dorff - May 26th, 2017
- Data Wonk: Why GOP Backs Gerrymander - Bruce Thompson - May 24th, 2017
- Data Wonk: State’s Political Map At Issue - Bruce Thompson - May 18th, 2017
- Rep. Peter Barca Statement on Attorney General Appeal of Redistricting Decision - State Rep. Peter Barca - Feb 24th, 2017
- Fair Elections Project calls upon Legislature to focus on fair map drawing process - Wisconsin Fair Elections Project - Feb 24th, 2017
- Campaign Cash: GOP’s Redistricting Lawyers Are Big Donors - Matt Rothschild - Feb 6th, 2017
- Op Ed: Reject Partisanship, Redraw Voting Maps - Andrea Kaminski - Feb 3rd, 2017
- Rep. Peter Barca Statement on Assembly Organization Committee Secret Ballot - State Rep. Peter Barca - Feb 2nd, 2017
- Court Watch: Court’s Redistricting Order A Problem? - Bruce Thompson - Feb 1st, 2017
- Rep. Hesselbein Calls for Open, Transparent, and Public Process for Drawing New Legislative Lines - State Rep. Dianne Hesselbein - Jan 27th, 2017
- Wisconsin Federal Court Permanently Blocks State Redistricting Plan - Wisconsin Fair Elections Project - Jan 27th, 2017
- Data Wonk: 2016 Election Results Prove Gerrymandering - Bruce Thompson - Dec 28th, 2016
- Plaintiffs call for new maps for Wisconsin legislative district - Wisconsin Fair Elections Project - Dec 21st, 2016
- Data Wonk: Measuring Wisconsin’s Gerrymandering - Bruce Thompson - Dec 7th, 2016
- Sen. Taylor statement on federal court ruling against Republican gerrymandering - State Sen. Lena Taylor - Nov 21st, 2016
- Statement on Redistricting Ruling - State Sen. Chris Larson - Nov 21st, 2016
- Federal Court overturns unconstitutional gerrymandering of Wisconsin legislative districts - Wisconsin Fair Elections Project - Nov 21st, 2016
- Rep. Barca Statement on Redistricting Decision - State Rep. Peter Barca - Nov 21st, 2016
- HISTORIC DECISION: Wisconsin Federal Court Strikes Down Partisan Gerrymander and Adopts Groundbreaking Legal Standard - Campaign Legal Center - Nov 21st, 2016
- Murphy’s Law: The Myth of Democratic Gerrymandering - Bruce Murphy - Jan 26th, 2016
- Data Wonk: Can New Approach End Gerrymandering? - Bruce Thompson - Jan 6th, 2016
- Federal Lawsuit to Overturn Unconstitutional Gerrymandering of Wisconsin Legislative Districts Continues - Wisconsin Fair Elections Project - Dec 17th, 2015
- Can Auto Redistricting End Gerrymandering? - Laura Thompson - Dec 10th, 2015
- Assembly candidate Brostoff calls for non-partisan redistricting - State Rep. Jonathan Brostoff - Apr 17th, 2014
- Redistricting reform the antidote to Republican extremism - Press Release - Nov 13th, 2013
- Lazich, August, Fitzgerald and Vos Still Silent on Redistricting Reform Public Hearings As Support & Pressure Builds - Common Cause in Wisconsin - Sep 17th, 2013
- Freshmen legislators push new legislation to correct flawed partisan redistricting process - Press Release - Apr 11th, 2013