Bill Whitford, the lead plaintiff in a landmark redistricting case heard today by the U.S. Supreme Court, is feeling good about what transpired.
“I’m hopeful,” Whitford told The Progressive shortly after sitting in on the oral arguments in Washington, D.C. “I think our lawyer did very well. Justice [Anthony] Kennedy asked a few questions that were helpful to our side.”
Bill Whitford: "They seemed very well-prepared."
The perspective of Kennedy, everyone agrees, will likely be pivotal to the outcome of the case, which could either strike down or affirm the ability of lawmakers to draw voter boundaries to partisan advantage. In 2004, in a case known as Vieth v. Jubelirer, Kennedy joined a 5-4 court majority in refusing to outlaw this practice. But he left open the possibility that he would support restrictions if someone came up with a “limited and precise” method of determining whether an unfair degree of partisanship had occurred.
That was the goal of Gill v. Whitford, the legal challenge that originated in Wisconsin following wholesale partisan redistricting by legislative Republicans in 2011. The following year, Republicans captured 60 of 99 state assembly seats despite garnering less than 50 percent of the statewide vote. This was accomplished 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.
Republicans captured 60 of 99 state assembly seats despite garnering less than 50 percent of the statewide vote.
The 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 and cracking.
Whitford, a retired University of Wisconsin law professor, was among a dozen state residents 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 told The Progressive early this year. “I got invited to join.” That effort led to a fresh legal challenge based on the efficiency gap. On January 27, a three-member panel of federal judges, including two Republican appointees, agreed that Wisconsin’s redistricting maps were unfairly partisans and ordered that they be redrawn. (For complete case filings, see www.fairelectionsproject.org.)
Whitford, reflecting on today’s hearing, said he was pleased that “all of the justices appeared to have read the briefs. They seemed very well prepared.”
As he gauged it, the court seemed to be divided as predicted along ideological lines, with the four liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) appearing supportive of the plaintiff’s arguments and the four conservatives (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) appearing opposed—although Thomas, he noted, did not ask any questions, as usual.
As for Kennedy, Whitford says the justice’s questions suggested a willingness to reject defense arguments challenging whether Whitford and other plaintiffs had “standing” to bring the case. As a resident of predominately Democratic Madison, Whitford’s district outcome was likely not affected. But he argued that he was nonetheless harmed because redistricting unfairly disadvantaged his party and thus the balance of power in the state.
“I felt Justice Kennedy’s questions were helpful to the question of whether I had standing,” Whitford said. In particular, he said, Kennedy suggested that the question should be decided based on the First Amendment guaranteeing freedom of association and not the Fourteenth Amendment regarding equal protection, which has been evoked in other gerrymandering cases. Later, according to Whitford, Kennedy appeared eager to move past the issue, saying something to the effect of, “Assuming the plaintiffs have standing, what’s your next argument?”
Press accounts of the hearing (a recording and transcript will not be available for several days) noted that Chief Justice Roberts expressed concern that ruling in favor of the plaintiffs would result in a spate of new redistricting challenges and allegations that the court was favoring one party over the other.
Meanwhile, Justice Kagan reportedly remarked that there was “good evidence” that Wisconsin’s maps were designed to have “a certain kind of an effect, which was to entrench a party in power.”
Whitford, for his part, is doing what he must: taking a wait-and-see approach. A decision is not expected for at least several months.
“I’m hopeful,” Whitford said, “but now comes the big weigh.”