I mentioned in my post the other day that it shouldn’t be very difficult to satisfy Whitford’s new standing requirements—at least for most plaintiffs in most districts. Cracking and packing are ubiquitous in any district map where significant vote dilution has occurred, and are easy to demonstrate using election results and district diagrams. Alternative district configurations featuring less cracking and packing are also easy to identify thanks to advances in technology that enable large numbers of lawful maps to be generated quickly. Most plaintiffs in most districts could have been placed in less cracked or packed districts (that are themselves components of fairer maps), simply because so many fairer maps exist.
The supplemental brief that the League of Women Voters of North Carolina filed today with the Supreme Court nicely illustrates my point. (As most ELB readers know, I help represent the League.) The League’s brief explains that all thirteen of North Carolina’s current congressional districts were intended to crack or pack Democratic voters, and did, in fact, crack or pack them in the 2016 election. For twelve of the thirteen districts, the League’s brief also highlights at least one alternative district configuration that would have involved less cracking or packing. Plaintiffs in almost every cracked district could instead have been placed in a district that would have been won by a Democrat. And plaintiffs in every packed district could instead have been distributed among two or more less highly concentrated, but still Democratic, districts.
As an example, here is the brief’s discussion of North Carolina’s First Congressional District. (The brief includes similar analyses of the plan’s twelve other districts.)
District 1 is located in northeastern North Carolina and contains most of the region’s Democratic voters. Ex.4007; Ex.4071; Ex.4073. Individual plaintiffs William Collins, Carol Faulkner Fox, Larry Hall, Annette Love, Gunther Peck, Elizabeth Torres-Evans, and Willis Williams live in District 1. Dkt.12:4-5; Dkt.41:8-10. The 2016 Plan’s author, Dr. Thomas Hofeller, predicted that District 1 would be a packed Democratic district with a Democratic vote share of 69%. Ex.5116:9. As expected, District 1 was won by the Democratic candidate in 2016 with 69% of the vote. Ex.1018. For these reasons, the district court found that District 1 was one of the districts into which “Dr. Hofeller ‘concentrat[ed]’ Democratic voters.” App.117.
The district court also found that District 1 was significantly more packed (or heavily Democratic) than the analogous district in more than 20,000 simulated district maps. App.102-03; Ex.3040:27. Dr. Hofeller, further, created two draft maps prior to finalizing the 2016 Plan (maps 17A and ST-B) in which District 1’s voters were distributed among three districts. All three of these districts were predicted to be Democratic (e.g., 51%, 52%, and 53% in map 17A). Ex.4023; Ex.4024. And the League’s expert, Professor Jowei Chen, produced many maps that unpacked District 1’s voters. His map 3-2, for example, contained two moderately Democratic districts (52% and 53%) in place of the overwhelmingly Democratic District 1. Ex.2010:12; Ex.4032.
Obviously, if all of this information can be gathered in less than two days—after litigation conducted without knowledge of Whitford’s standing requirements—then future litigants will have little trouble compiling an even stronger record on standing. Whitford, then, may ultimately come to be seen as the partisan gerrymandering analogue of U.S. v. Hays. In Hays, the Supreme Court dismissed a racial gerrymandering challenge because the plaintiffs did not live in the district they were attacking. All subsequent racial gerrymandering litigants made sure to include district residents as plaintiffs, meaning that Hays became irrelevant almost immediately. After Whitford, similarly, partisan gerrymandering litigants will be certain to allege (and prove) unnecessary cracking and packing. Other hurdles may yet frustrate these litigants, but standing is unlikely to be a major obstacle again.