Wisconsin – It’s the case that all the legal and social science geeks have been eyeing for months now. It offers maybe the best chance for the Supreme Court to finally find a partisan gerrymander that goes too far, something it has considered over the years, but has never done. This would be a first. We still wait to see if the Supreme Court grants a hearing. In the meantime, here is an update on the challenge to Wisconsin’s state legislative district map Whitford v. Gill.
In the District Federal Court: The Allure of Efficiency Gap Analysis
Exactly what captured the imagination of legal scholars and social science geeks? Efficiency Gap Analysis, (EG) a statistical measure of wasted votes that purports to show a partisan gerrymander’s level of viciousness. In November of 2016, the U.S. District Court for the Western District of Wisconsin released its opinion invalidating the Wisconsin State legislative map. EG was discussed in the opinion, along with other social science measures, but EG stood out as perhaps the great hope that the Supreme Court would finally get its “manageable standard” for evaluating these complex claims.
A recent Harvard Law Review article gives a good analysis of the District Court’s reasoning in its opinion, and makes clear that while EG was a robust measure of partisan imbalance in a redistricting map, it was the court’s analysis of “entrenchment of power” that was determinative. EG remains helpful, as it corresponds to other social science measures, but at least one Supreme Court Justice – Chief Justice Roberts – still finds these types of measures ” sociological gobbledygook.” The Law Review article echoes the hope of the Wisconsin District Court and many who follow this legal saga that indeed, there is a distinction between “inevitable” and “invidious” use of partisan gerrymanders when redistricting.
In the Supreme Court: Is the Wisconsin Case a Red Herring?
The oral argument in the Supreme Court have already ended, and you can hear them below. In an unexpected turn, the court decided to also hear a partisan gerrymandering case against Maryland’s congressional map. The case focuses on a single district (Whitford is a challenge to an entire map) and focuses its claim on the 1st Amendment (Whitford focuses on the 14th Amendment). Even more interesting, if you listen to the oral argument in Whitford, you will hear Justice Kennedy asking a “hypothetical” about what would be the outcome in that case if it were a 1st Amendment issue. Perhaps the court has found a partisan gerrymander theory they like. Indeed, the Maryland case was crafted to speak to Justice Kennedy, who pondered about partisan gerrymander claims based on the 1st Amendment in Vieth v. Jubelirer, some 14 years ago. Of course there are other theories, but suffice it to say, many wait with baited breath in 2018. You can catch up on the background of this case below.
Listen to the Oral Argument in Gill v. Whitford: