The Gerry Mander, a cartoon by Elkanah Tisdale and first published in the Boston Centinel, 1812. Via Wikimedia Commons
Bill Whitford was a law student at Yale more than fifty years ago, when he wrote his first academic article on a landmark case that established the ability of federal courts to intervene in the redrawing of voter boundaries, or what is known as reapportionment. Now he’s the lead plaintiff in a case that could restrict how far partisans can go in using redistricting to their advantage.
“There’s an element of full circle,” Whitford notes.
On Friday, January 27, a three-member panel of federal judges, including two Republican appointees, ruled that Wisconsin must redraw its illegally rigged election boundaries for state legislative districts by November 1, 2017, in time for the 2018 elections. (For complete case filings, see www.fairelectionsproject.org.)
Whitford, 77, who retired in early 2014 after forty-nine years as a University of Wisconsin law professor, notes the national significance of the case that bears his name: “The Supreme Court has yet to set limits on any legislative reapportionment scheme due to partisan effect. We hope it will do so for the first time in our case.”
He is one of twelve named plaintiffs in a case that could significantly undo the partisan advantage that Wisconsin Republican lawmakers created for themselves in the wake of the 2010 Census through their control of the redistricting process.
Their lawsuit, filed in July 2015, devised a new way to measure the unconstitutional disadvantage created by partisan redistricting. It is called the “efficiency gap”—a system for measuring the number of “wasted” votes caused by “packing” a disfavored party’s supporters into as few districts as possible while “cracking” other districts to give the favored party a slight advantage.
The lawsuit measured what it called the “efficiency gap”—a way to capture the number of “wasted” votes caused by “packing” a disfavored party’s supporters into as few districts as possible while “cracking” other districts to give the favored party a slight advantage.
Previous challenges to reapportionment schemes—including ones in North Carolina and Virginia that the U.S. Supreme Court decided in December to hear—pivot instead on the negative impact on racial minorities.
Whitford, in an interview with The Progressive, says he was recruited for the lawsuit by a group of attorneys after a prior challenge to Wisconsin’s secretive and costly 2011 redistricting led to only minor tweaks based on a disadvantage created for Latino voters.
“After that decision came down, some people began meeting in Milwaukee,” Whitford recalls. “I got invited to join.”
Bill Whitford: “The system for reapportionment for drawing district boundaries is deeply flawed and raises issues regarding small-d democracy.”
The twelve named plaintiffs are voters throughout the state who identify as partisan Democrats. Whitford, a Madison native who was chair of the local Young Democrats during the 1960 election and who has since helped raise money and support for Democrats in legislative races, qualified easily: “I’ve been an active Democrat forever.”
Group members signed agreements to be part of the case, which brought together a significant amount of research in support of the alleged “efficiency gap.”
According to the complaint, “Both cracking and packing produce so-called ‘wasted’ votes—that is, votes that do not directly contribute to a candidate’s election. When voters are cracked, their votes are wasted because they are cast for losing candidates. Similarly, when voters are packed, their votes are wasted to the extent they exceed the 50%-plus-one threshold required for victory (in a two-candidate race).” The gap measures the extent to which the party that conducts the redistricting “wastes fewer votes than its adversary.”
The plaintiffs’ analysis found that the voter boundaries created by Republicans in 2011 resulted in a 13 percent efficiency gap in their favor in the 2012 election, and 10 percent in 2014. Asserts the complaint, “Between 1972 and 2010, not a single plan anywhere in the United States had an efficiency gap as high as the Current Plan in the first two elections after redistricting.”
Reflects Whitford, “The system for reapportionment for drawing district boundaries is deeply flawed and raises issues regarding small-d democracy.” He notes that throughout the nation’s history, there have been grounds on which to challenge its self-image as a democracy—such as the fact that African Americans and women were not always allowed to vote.
Through it all, one of the core values of democracy, Whitford says, is that the majority should govern. But given how the system has been rigged in Wisconsin, he says, it would take perhaps as much as 60 percent of the vote for Democrats to win a majority in the state Assembly.
“That doesn’t fit the core idea of democracy,” Whitford says.
That Wisconsin Republican’s redistricting scheme has worked as intended is impossible to deny. As the Wisconsin State Journal noted in a recent editorial, “in 2012, the GOP won 60 of 99 seats in the state Assembly, even though Republicans captured only 48.6 percent of the vote statewide. In 2014, the Republicans collected 52 percent of the vote and won 63 Assembly seats. And in the last election, the GOP majority expanded to 64.”
A 2014 analysis by Wisconsin Public Radio compared the vote projections made during the redistricting process by a GOP-hired strategist to the actual outcomes of the elections in the fifty GOP-held Assembly seats facing Democratic challengers in 2012. It found that the strategist’s predictions were accurate, on average, to within a single percentage point. Republican incumbents won all but three of these races.
The Wisconsin order follows an earlier ruling in November by the same three-judge panel that the redistricting conducted by the state Republican legislature in 2011 constituted “unconstitutional partisan gerrymander” that was specifically intended to impede the ability of state Democrats “to translate their votes into legislative seats.”
“The court found Republicans went out of their way to draw a blatantly partisan map in secret in order to undermine the rights of Wisconsin citizens,” said Assembly Democratic Leader Peter Barca (D-Kenosha) in a statement calling for a more transparent process. “A new map should be subject to public hearings in different parts of the state to ensure that voters are choosing their representatives, not the other way around.”
The three-judge panel includes two judges appointed to the federal bench by Republican Presidents: Kenneth Ripple, named to the U.S. Appeals Court for the Seventh Circuit in 1985 by Ronald Reagan; and William Griesbach, chief judge of the U.S. District Court in Milwaukee, tapped in 2002 by George W. Bush. The third judge, Barbara Crabb, was appointed in 1979 by President Jimmy Carter, a Democrat.
Wisconsin Attorney General Brad Schimel, a Republican, has pledged to appeal these findings to the U.S. Supreme Court.
The judges, in ordering the Legislature to take immediate steps to redraw the maps in a way that passes constitutional muster, rejected arguments that Wisconsin should wait for the outcome of its appeal before taking steps to redraw the maps. “[B]y choosing to enact a plan contingent on the Supreme Court’s affirming our judgment,” the judges wrote, “the defendants will retain easily the present map if the Supreme Court does not agree with our disposition.” (Emphasis in original.)
Whitford says he hopes, first of all, that the case will result in “a new legislative map that’s neutral with respect to partisan favor” in time for the 2018 elections. Additionally, he hopes that the U.S. Supreme Court will set a national precedent on “how partisan a redistricting can be.”
That would be another step forward for small-d democracy.