The United States Supreme Court’s unanimous decision in Gill v. Whitford did not settle the question of partisan gerrymandering, as many had anticipated that it would. The Court denied the plaintiffs’ standing in this case because the plaintiffs failed to show specific harms arising from the configuration of individual districts.
Chief Justice Roberts, writing for the Court, explained that “[t]he boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. . . . A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, ‘assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.’”
The Court’s decision in Whitford presents a challenge for social scientists that serve as experts in voting rights litigation—and therefore for plaintiffs seeking to prove unconstitutional partisan gerrymandering. Most social science scholarship measures the partisan effects of redistricting maps on a statewide basis. The experts before the trial court in Whitford viewed the problem through those lenses, and presented an analysis of vote dilution throughout the entire state of Wisconsin using the Efficiency Gap. The Efficiency Gap begins with the concepts of packing, cracking, and wasted votes. A party wastes votes when it receives more votes than necessary to win a district (packing), and a party wastes the votes that it receives in districts that it loses (cracking). The Efficiency Gap calculates the total number of wasted votes of one party across all districts minus the number of wasted votes of the other party. In a fair map, plaintiffs argued, the wastage ought to be symmetric for the two parties and thus the Efficiency Gap should be close to 0 in the entire state. Packing and cracking, as Chief Justice Roberts suggests, can be evidence of discrimination against individuals in a given district, but an aggregate measure is not evidence of harm to those individuals for a vote dilution claim.
How should plaintiffs and their experts proceed? What methodologies should social scientists use to gauge the effects of redistricting on individuals’ voting rights and prove harm to the satisfaction of the courts? In her concurrence, Justice Kagan suggests that plaintiffs use similar methods as deployed in racial redistricting cases under the Fourteenth Amendment, especially the presentation of “an alternative map (or set of alternative maps)—comparably consistent with traditional districting principles—under which [the plaintiff’s] vote would carry more weight.” Justice Kagan went on to explain that a claim that partisan gerrymandering violated a plaintiff’s free association under the First Amendment would not require district-specific harm, but the plaintiffs had not sufficiently raised that claim before the Court in Whitford.
But, at least for the vote dilution claim considered by the majority, the Court held that the injury must be “district specific” for a plaintiff to have standing. Beyond the use of alternative maps, there is little guidance in Whitford or previous federal cases as to what kind of evidence successfully indicates district-level harm or intentional discrimination on the basis of partisanship.
We can, however, learn from the states. In Florida and Pennsylvania, state courts recently struck down congressional districts as violations of those states’ constitutional prohibitions against discrimination on the basis of party.
One possible model is the approach used by plaintiffs and adopted by the state courts in Florida. In 2010, Florida voters adopted an amendment to their constitution providing that “[n]o apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party” and “districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process.” I served as an expert witness for the plaintiffs in Romo v. Detzner (later consolidated as League of Women Voters of Florida v. Detzner), a case in which the state circuit court in Leon County and the Florida Supreme Court invalidated the State’s Congressional District map.
The inquiry in Florida addressed three successive questions. First, does the map generally conform to traditional districting principles, such as compactness and keeping whole communities of interest, municipalities, and counties; and where does the legislature’s map deviate from those principles? Second, where there are deviations from these principles, and what is the effect of the departures from traditional districting principles? Third, could the same objective have been accomplished with an alternative configuration of districts?
Florida Congressional District 5 (CD 5) provides an excellent case study. First, CD 5 violated every traditional districting standard. CD 5 connected parts of Jacksonville in north Florida to neighborhoods in Orlando in central Florida, snaking along the Saint Johns River to these two cities, and splitting every one of the counties it crossed through. Geographic and statistical analysis showed that CD 5 was highly non-compact, one of the five least compact districts in the nation.
Second, it was created on the pretext of the need to make a majority black district. The version of CD 5 initially enacted by the legislature in 2012 had a black citizen voting aged population of 49 percent. However, it took enough voters out of other districts in Orlando so as to make it impossible to create another reasonably compact district—one that would have had a majority black-plus-Hispanic population and would have been a Democratic district. Examination of the changes in the boundaries of CD 5 and surrounding districts revealed movement of precincts in such a way that packed Democratic votes into two Democratic districts and more efficiently dispersed Republican votes across four neighboring Republican leaning districts.
Third, there were other ways to accomplish the state’s objective of creating a district in north Florida in which black voters would have the opportunity to elect their preferred candidates without fracturing the Orlando area. Plaintiffs presented a demonstration map in which a substantially more compact version of CD 5 connected Jacksonville and Tallahassee, keeping whole the counties in between these two cities, and in which a there was an additional compact Democratic district in the Orlando area. Hence, the configuration of CD 5 by the legislature was a pretext for cracking Democratic voters in Orlando. In this way, diagnosing the problem using traditional districting principles and an alternative map also revealed a possible solution.
In addition, the circuit court in Florida examined other evidence concerning the intent of the legislature. Such evidence included public records, emails and other disclosures of legislative communications about redistricting, testimony of legislators and staff, and proposed redistricting maps and amendments to the maps passed by the legislature.
In the Florida case, violations of traditional districting principles were the starting point for uncovering discriminatory partisan gerrymandering. Split communities, municipalities, and counties and highly non-compact and irregular district boundaries raised red flags about the process that produced a map, revealed the dilution of voters rights, and, ultimately, pointed to remedies. It is possible that there are good reasons for violating traditional principles, such as creating a minority district. Deeper investigation, such as was done in the Florida case, using alternative maps, statistical analyses of the characteristics of districts, and testimony concerning the intent of legislators, can uncover whether the strangely configured districts in a map were necessary to protect voting rights or were, in fact, an attempt to crack and pack some voters so as to dilute their votes in violation of equal protection.
Ultimately, the result was a fair map. The map that the state legislature drew in response to the state courts’ decisions in Florida had no partisan bias and a relatively low Efficiency Gap. Those were not requirements, but results, of the process in Florida.
Current federal case law provides little guidance as yet as to how to establish harms of intentional discrimination against people on the basis of their partisan preferences. In her concurrence, Justice Kagan wrote that “a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there” (emphasis added). The Florida case provides one model for what other evidence is available to the federal courts to prove the harms of partisan vote dilution, and how the process of gathering such evidence can bring to light a real remedy.