Gill V. Whitford and the Fate of U.S. Democracy

Dec 29, 2017

Earlier this year, the Supreme Court of the United States heard oral arguments on Gill v. Whitford, also known as the Wisconsin gerrymandering case.

There is a lot of uncertainty as to how the court will rule, with most of the conservative and liberal justices coming down on opposite sides of the issue. As is often the case, Justice Kennedy will likely be the deciding vote.

"This is an opportunity for the Supreme Court of the United States to put an end to one of the most toxic things in our democracy: partisan gerrymandering."

"This is an opportunity for the Supreme Court of the United States to put an end to one of the most toxic things in our democracy: partisan gerrymandering," says David Daley.

Daley is the author of RatF****d: The True Story Behind the Secret Plan to Steal America’s Democracy, which takes an in-depth look at the GOP REDMAP project. REDMAP was a nationwide effort to get GOP candidates into state legislatures, allowing Republicans to control the redistricting process.

The plan worked in many states, particularly in Wisconsin. Daley explains, "In 2012 - the first election that [was] run on those lines - Democrats got more votes for the Wisconsin State Assembly. Republicans, however, took 60 of the 99 seats. So, if all the votes go one way and all the seats go the other, you can certainly have a sense that those were very, very powerful district lines." 

"In 2012 - the first election that [was] run on those lines - Democrats got more votes for the Wisconsin State Assembly. Republicans, however, took 60 of the 99 seats."

Despite GOP candidates earning fewer votes than Democrats, Republicans have been able to maintain a super majority in every election following the redistricting in Wisconsin. Currently, partisan gerrymandering is completely legal, but this is not the first time the U.S. Supreme Court has considered a case on the issue. 

Thirteen years ago, Vieth v. Jubelirer made its way to the U.S. Supreme Court. Daley explains, "It's a case out of Pennsylvania in which voters in Pennsylvania sued, saying that their constitutional right to equal protection under the law had been abused by the lines that were drawn for Pennsylvania's congressional districts after the 2000 census." 

Like now, the court was very divided. According to Daley, conservative judges were ready to close the book on all claims of partisan gerrymandering, while the liberal justices sided against partisan gerrymandering. Justice Kennedy was the deciding vote.

"It creates districts that are uncompetitive, it insulates our politicians from the ballot box, it makes them responsive only to the most extreme wings of their own party."

"Kennedy writes a really interesting concurrence," says Daley. "He ends up siding with the conservatives because he does not see a clear and manageable standard by which to define partisan gerrymandering in that case. He didn't see a way to resolve it that was clear, reliable, and able to be applied across states and across different situations."

He continues, "And he writes a concurrence with the conservatives, but it's his own concurrence. And what he says is, 'I'm not willing to close the door on this. This is an important issue and technology is getting very serious here, and just because I don't see a standard in this case doesn't mean someone won't show me a standard down the line.'"

The current case, answers this issue with the "efficiency gap, which has been at the heart of Gill v. Whitford and it is one of the ways you can show when a partisan gerrymander has crossed the line and gone too far," says Daley. 

"[Partisan gerrymandering] leads to the kind of dysfunctional and unresponsive and non representative government that we're seeing at all levels of our politics today."

Justice Ruth Bader Ginsberg has suggested Gill v. Whitford is the most important case the court will hear this session, and she's not alone in that opinion. Daley believes the the fight against partisan gerrymandering is really the fight for democracy in the United States, and he points to Wisconsin's elections post-redistricting as a poignant example. 

He says, "In half of these races voters don't have any choice at all and that's how corrosive gerrymandering is to a democracy. It creates districts that are uncompetitive, it insulates our politicians from the ballot box, it makes them responsive only to the most extreme wings of their own party."

He continues, "When you don't have to worry about losing a general election, all you have to do is concern yourself with fending off a primary challenge from someone more extreme in your own party. And it leads to the kind of dysfunctional and unresponsive and non representative government that we're seeing at all levels of our politics today."