begin quote from:
A
panel of three federal judges said Monday that the Wisconsin
Legislature’s 2011 redrawing of State Assembly districts to favor
Republicans was an unconstitutional partisan gerrymander, the first such
ruling in three decades …
A
panel of three federal judges said Monday that the Wisconsin
Legislature’s 2011 redrawing of State Assembly districts to favor
Republicans was an unconstitutional partisan gerrymander, the first such
ruling in three decades of pitched legal battles over the issue.
Federal
courts have struck down gerrymanders on racial grounds, but not on
grounds that they unfairly give advantage to a political party — the
more common form of gerrymandering. The case could now go directly to
the Supreme Court, where its fate may rest with a single justice,
Anthony M. Kennedy, who has expressed a willingness to strike down
partisan gerrymanders but has yet to accept a rationale for it.
Should
the court affirm the ruling, it could upend the next round of state
redistricting, in 2021, for congressional and state elections
nationwide, most of which is likely to be conducted by
Republican-controlled legislatures that have swept into power in recent
years.
“It
is a huge deal,” said Heather Gerken, a Yale Law School professor and
an expert on redistricting. “For years, everyone has waited for the
Supreme Court to do something on this front. Now one of the lower courts
has jump-started the debate.
“If this were to be a nationwide standard, 2021 would look quite different,” she said, “especially for the Democrats.”
Several
election-law scholars said the ruling was especially significant
because it offered, for the first time, a clear mathematical formula for
measuring partisanship in a district, something that had been missing
in previous assaults on gerrymandering.
The
2-to-1 ruling by the United States District Court for the Western
District of Wisconsin said that the Legislature’s remapping violated
both the First Amendment and the Equal Protection Clause of the 14th
Amendment because it aimed to deprive Democratic voters of their right
to be represented.
“Although
Wisconsin’s natural political geography plays some role in the
apportionment process,” the court wrote, “it simply does not explain
adequately the sizable disparate effect” of Republican gains in the
State Assembly after the boundaries were redrawn.
The
judges who ruled in favor of the plaintiffs, Kenneth Ripple and Barbara
Crabb, were nominated to the bench by Presidents Ronald Reagan and
Jimmy Carter. Judge William Griesbach, nominated by President George W.
Bush, dissented.
The
boundaries of both federal and state legislative districts are redrawn
every 10 years after the census to ensure that each district contains
roughly the same number of people, a standard the Supreme Court set with
its one-person-one-vote ruling in 1962.
But
both Republican and Democratic majorities in statehouses often remap
districts to favor themselves, either by cramming opposition voters into
a single district, or dividing them so they are the majority in fewer
districts, tactics called “packing and cracking.”
Courts
generally have agreed that some partisan advantage in redistricting is
tolerable, in part because voters themselves are not spread equally
across a state or district by party. But the plaintiffs in the case, 12
state Democrats represented by the Campaign Legal Center, had argued
that the Wisconsin remapping was among the most sharply partisan in the
nation.
In
2012 elections for the Assembly, Wisconsin Republicans won 48.6 percent
of the two-party vote, but took 61 percent of the Assembly’s 99 seats.
A
key question in Monday’s ruling, as in past challenges to
redistricting, was whether that division was unacceptably partisan, a
question that previous courts have stumbled over.
“Nobody
has come up with a standard to measure constitutionality — how to
distinguish between malevolent, evil partisanship that’s manipulative,
versus the natural advantage one party might have as a result of where
voters happened to live,” said Edward Foley, the director of the
Election Law Project at Ohio State University’s Moritz College of Law.
In
Monday’s ruling, the court was swayed by a new and simple mathematical
formula to measure the partisan impact of redistricting, called the
efficiency gap. The formula divides the difference between the two
parties’ “wasted votes” — votes beyond those needed by a winning side,
and votes cast by a losing side — by the total number of votes cast.
When both parties waste the same number of votes, the result is zero —
an ideal solution. But as a winning party wastes fewer and fewer votes
than its opponent, its score rises.
A
truly efficient gerrymander spreads a winning party’s votes so evenly
over districts that very few votes are wasted. A review of four decades
of state redistricting plans concluded that any party with an efficiency
gap of 7 percent or more was likely to keep its majority during the 10
years before new districts were drawn.
In
Wisconsin, experts testified, Republicans scored an efficiency gap
rating of 11.69 percent to 13 percent in the first election after the
maps were redrawn in 2011.
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