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diJoseph Haase

Traditionally, the Supreme Court found the Constitution vests reapportionment to the state government.[1] With this breadth, States delegate their reapportionment responsibilities to several different bodies: direct legislative control, bipartisan or independent commissions,[2] other branches,[3] and hybrids.[4] Wisconsin follows the direct legislative control.[5] Because of this, Wisconsin’s redistricting schemes are highly contested and often end up litigated in federal courts.[6] This ultimately is the fate of Wisconsin’s 2011’s reappointment scheme: Act 43.[7]

Act 43 differs from Wisconsin’s previous reappointment plans in a crucial way. In 2010, Republicans gained control of Wisconsin’s Assembly, Senate, and Governor for the first time in 40 years.[8] With this new unilateral redistricting power, the Republicans could draft and pass Act 43.[9] The drafters of Act 43 took partisan makeup of Wisconsin and created districts with highly sophisticated computer modeling.[10] Then, the drafters then used different regression analyses to determine district outcomes over a range of each party’s vote share.[11] In effect, the drafters could create and test the robustness of their districts and the likely Assembly and Senate outcomes over a wide range of election outcomes.[12] By their last iteration of district drawing, the drafters predicted that Republicans would maintain a 54-seat majority with only 48% of the vote.[13] Democrats, however, would need 54% to reach a 50-seat majority.[14] The drafters effectively created and tested different appointment schemes to determine which would systematically favor Republican votes. Once implemented, Act 43 worked even better than predicted.[15] In 2012, Republicans captured 48.6% of the vote and received 60 of the 99 Assembly votes.[16] In 2014, Republicans won 52% of the vote and 63 Assembly seats.[17]

In 2016, Plaintiff William Whitford brought suit alleging that Act 43 is an unconstitutional gerrymander because the Act systematically dilutes the voting strength of Democrats.[18] The most traditional voter protection stems from the Equal Protection clause of the Fourteenth Amendment.[19] Under Equal Protection, courts must find discriminatory intent and effect without an adequate state justification.[20] The Court has been unable to articulate a test for discriminatory effect.[21] However, the district court accepts Plaintiff’s new test: the Efficiency Gap.[22] The Efficiency Gap weighs the number of wasted votes by each party and divides it over the total.[23] Wasted votes are those that either went to a losing candidate or in excess to a winning candidate.[24] The district court contends that this measure illustrates the number of “packed” or “cracked” votes a party receives, and indicates when a political party has been invidiously discriminated against.[25]

The Supreme Court must determine if the efficiency gap will be the long-awaited test for political gerrymandering cases. With several of the Justices still on the Court since Vieth v. Jubelirer, where the Court almost determined political gerrymandering non-justiciable, it appears likely that Whitford v. Gill will again be a plurality decision.[26] This may be helped by the fact that predicted voter turnout in the 2016 presidential election was dramatically incorrect.[27] Further, the Efficiency Gap has some methodical issues that may undermine its persuasiveness.[28] Even though the Efficiency Gap may not be adopted, the blatant and pervasive discrimination of Act 43 most likely meets discrimination by the totality of the circumstances, and will therefore be overturned.[29] Whatever the outcome, Whitford will have important implications for subsequent political gerrymandering cases.

This case comment will discuss the jurisprudence of political gerrymandering as well an in-depth analysis of the efficiency gap. Part I will offer a history of Wisconsin’s Act 43, as well as its impact on State Assembly elections in the subsequent years. Part II will look at the Supreme Court’s hazy political gerrymandering jurisprudence and offer insight into the current Justices’ leanings. Part III will be a critical look at how the efficiency gap operates, as well as its alignment with Court’s guidance. Part IV will postulate an outcome for the Efficiency Gap as well as a prediction of the Supreme Court’s conclusion for Whitford.

[1] Gaffney v. Cummings, 412 U.S. 735, 752(1973) (“We have repeatedly recognized that sate reapportionment is the task of local legislatures or of those organs of state government selected to perform it.”).

[2] E.g., Cal. Const. art. XXI, §§ 2(a) & (c) (stating the Citizens Redistricting Commission–consisting of five Republicans, five Democrats, and four Independents–intends to produce a redistricting body “that is independent from legislative influence and reasonable representative of this State’s diversity.”).

[3] E.g., Ark. Cont. art. 8, § 1 (stating the Board of Apportionment shall consist of the Governor, Secretary of State, and Attorney General).

[4] E.g., 17 V.S.A. §1904 (1965) (stating the Legislative Apportionment Board shall consist of a member from the three major political parties, the three Governor appointments, and the Chief Justice of the Vermont Supreme Court provides an impartial plan, then adopted by the General Assembly).

[5] Wis. Const. art. IV., § 3 (“At its first session after each enumeration made by the authorities of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants.”).

[6] See, e.g., Wis. State AFL–CLO v. Elections Bd., 543 F. Supp. 630, 631 (E.D. Wis. 1982) (redistricting plan passed by legislature but vetoed by governor. Final redistricting plan ultimately chosen to federal district court).

[7] Wis. Stat. §§ 4.001–4.006 (2011).

[8] Whitford v. Gill, 218 F.Supp.3d 837, 846 (W.D. Wis. 2016).

[9] See id. at 846–53 (explaining Act 43’s process through the Wisconsin legislature).

[10] Id.

[11] Id. at 850.

[12] Id. at 851–52.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 853.

[17] Id.

[18] Complaint at 6, 15, 16, Whitford v. Gill, 218 F.Supp.3d 837 (W.D. Wis. 2016) (No. 3:15-cv-00421).

[19] Reynolds v. Sims, 377 U.S. 533, 566 (1964).

[20] Id.

[21] See Vieth v. Jubelirer, 541 U.S. 267, 290 (2004) (asserting political gerrymandering tasks judges with weighing “a sea of imponderables, and asks them to make determinations that not even election experts can agree upon.”).

[22] Whitford, 218 F.Supp.3d at 910 (2016).

[23] Id. at 903–10 (explaining the Efficiency Gap and its methodical components: ).

[24] Id. at 904.

[25] Id.

[26] Vieth, 541 U.S. at 290 (2004).

[27] Who Will Win the Presidency, FiveThirtyEight, (last visited Nov. 6, 2017); Nate Silver, Why FiveThirtyEight Gave Trump a Better Chance Than Almost Everyone Else, FiveThirtyEight (last visited Nov. 6, 2017).

[28] See, e.g., Wendy K. Tam Cho, Essay, Measuring Partisan Fairness: How Well Does the Efficiency Gap Guard Against Sophisticated as well as Simple-Minded Modes of Partisan Discrimination?, 166 U. Penn. L. Rev. Online 17, 23 (2017) (voter turnout changes each election, so efficiency gaps are difficult to compare across time).

[29] See Davis v. Bandemer, 478 U.S. 109, 132–33 (1986) (“[T]he question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process.”).

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