Whitford’s Hints of Promise

The Court’s decision today holding that the plaintiffs in Gill v. Whitford have not proven their standing is disappointing. I’ll identify what I think are the weaknesses in the Court’s reasoning in a subsequent post. Here, though, I want to emphasize the significant signs of promise in the Court’s decision. First, the Court clearly left the door open to future partisan gerrymandering litigation. Second, the Court accepted, at least tacitly, the plaintiffs’ primary theory of gerrymandering: that it dilutes the votes of supporters of the disadvantaged party by cracking and packing these voters. And third, the Court’s standing requirements easily can be satisfied by future litigants—and will soon be satisfied by the Whitford plaintiffs.

Starting with the first point, Wisconsin and its amici had urged the Court to hold that partisan gerrymandering claims are inherently nonjusticiable—or that even if they may be brought, individual voters may not bring them. The Court, however, didn’t say a word about the intrinsic nonjusticiability of gerrymandering. The Court, that is, didn’t do the one thing that would have definitively terminated all gerrymandering litigation. Nor did the Court rule that individual voters may not bring gerrymandering claims (on the ground that no voter has the right to be placed in any particular type of district). To the contrary, the Court affirmatively confirmed the standing of a great many voters: all those residing in unnecessarily cracked or packed districts.

Second, while the Court purported only to address standing, it implicitly recognized the coherence (if not the merit) of the Whitford plaintiffs’ vote dilution theory. The Court had no choice but to engage with the theory’s substance because who has standing necessarily depends on what a suit is all about. And regarding what a vote dilution suit is all about, the Court agreed with the plaintiffs that its essence is the cracking and packing of the disadvantaged party’s supporters. “Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted,” the Court stated in a key passage. “That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” Or again: “Four of the plaintiffs in this case . . . . alleged that Act 43 ‘dilut[ed] the influence’ of their votes as a result of packing or cracking in their legislative districts.

It’s important not to overstate this point. The Court did not hold that vote dilution is a justiciable theory of partisan gerrymandering. Nor did the Court announce any kind of standard for a claim of partisan vote dilution. Nevertheless, the Court plainly understood what vote dilution is and how it operates to enhance one party’s power and to diminish the electoral influence of the opposition. If not exactly a great leap forward, this is still non-trivial progress in the fight against gerrymandering.

Third, and most importantly, the Court’s new standing requirements for vote dilution plaintiffs should be easy to satisfy in many cases (including Whitford itself). The Court ruled that vote dilution plaintiffs (though not necessarily other kinds of gerrymandering plaintiffs) must “live in districts where [voters] like them have been packed or cracked.” Packing and cracking, according to the Court, are relative concepts, not absolute ones. A district’s own partisan composition, in other words, is not enough to establish packing or cracking. Rather, the district’s makeup must be compared to that of a benchmark district (for example, a district in the same region in a prior map, a demonstration map, or a computer-simulated map). Only if the actual district is more packed or cracked than the benchmark district does a resident of the actual district have standing. In this case alone, the resident’s vote “carr[ies] less weight than it would carry in another, hypothetical district.”

In suits (like Whitford) where intentional, severe, and unjustified vote dilution has occurred, these new standing criteria should not be difficult to meet. Packed or cracked districts must be identified. Well, there are dozens of such districts in Wisconsin’s state house map, and they are necessarily ubiquitous in any other plan where a party’s votes have been significantly diluted. Less packed or cracked alternatives to these districts must also be established. They too are not hard to find if the challenged map is really a gerrymander. An earlier plan, a plan drawn by the plaintiffs, and/or a plan produced by a computer algorithm all may contain districts in the same areas as the plaintiffs’ districts that would enable the plaintiffs’ votes to carry more weight.

What will happen next in Whitford, then, is that the plaintiffs will amend their complaint to add more voters and to explain how their districts have been packed or cracked relative to alternative districts. Because packing and cracking took place throughout Wisconsin’s state house map, plaintiffs with standing will be easy to locate in every corner of the plan. Thus even if a subsequent remedy is limited to the districts where voters with standing live, this will not amount to a severe restriction. Curing the vote dilution in these districts will be quite similar to fixing the problem statewide.

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