Redistricting Decision May Have Major Implications for Republican Majority in State Legislature

Nathan Eisenberg

On Monday November 21st, a three judge panel in Whitford v. Gill struck down Wisconsin’s 2011 redrawing of state assembly districts in Wisconsin.  The panel consisted of Kenneth Ripple (from the Seventh Circuit Court of Appeals), Barbara Crabb (from the Western District of Wisconsin) and William Griesbach (from the Eastern District of Wisconsin).   The majority of the panel found that the legislature’s redrawing of the districts was an unconstitutional partisan gerrymander.  Judge Griesbach dissented.

Gerrymandering is the process by which political boundaries are redrawn to favor a party or group.  This is the first decision where gerrymandering has been struck down based on favoritism towards a specific political party.  The redistricting in Wisconsin has resulted in a heavy Republican majority in the Wisconsin legislature.

Previous attempts to litigate gerrymandering have struggled to measure how favoring one political party violates the Constitution.  In this case, the court relied on a new measurement called the “efficiency gap” which measures how many votes are “wasted” in each district.   Wasted votes occur where they are either cast for a losing candidate or for a winning candidate but in excess of what he or she needs to prevail.    “The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” The greater the efficiency gap the more partisan the gerrymander.

The court noted, that an efficiency gap above 7% in any districting plan’s first election year will continue to favor the incumbent party for the life of the plan.  According to the Plaintiffs’ expert, in this case, the 2011 redistricting plan “produced a pro-Republican efficiency gap of 13% in 2012 and 10% in 2014.”

If the efficiency gap measurement  stands, the decision will have important ramifications in Wisconsin and beyond.  Similar redistricting plans were passed across the country following a wave of Republican victories in 2010.  Such redistricting heavily favored the Republican party in state elections.  If these plans are overturned, and require smaller “efficiency gaps” it would threaten the Republican majorities in those states.

Importantly, the decision did not include a remedy to Wisconsin’s unconstitutional gerrymander.   That will be decided in a subsequent decision, and the Court gave the parties thirty days to brief such issue.

Redistricting cases follow a different procedure than other cases.  Under federal law, redistricting cases are required to be heard by a district court of three judges.  28 U.S.C. § 2284.  Opinions from three judge panels can be appealed, but only directly to the U.S. Supreme Court.  28 U.S.C. § 1253.