In the Courts: Whitford v. Gill

I might have to redo my notes on gerrymandering - again.

Racial gerrymandering has been declared unconstitutional because ace is a suspect classification under the equal protection clause. Any attempt to undermine representative strength leads to unequal protection. But party identification is not a suspect classification, so partisan gerrymandering is perfectly fine. Except that it - now - may violate the principle of "one person one vote" since the ability of the party in a legislature to minimize the power of the minority has been greatly enhanced by new technologies.

The courts are being presented with an argument that an "efficiency gap" can be used to determine if the votes of the minority party have been excessively lessened. Partisan gerrymandering can occur when greater numbers of one party are placed in a smaller number of districts, meaning that more of their votes are "wasted" than those of the other party.

For a quick review, click here: Why the Ruling Against Wisconsin’s Gerrymander Could Change Redistricting in America.

The courts have struck down race-based gerrymanders as a violation of equal protection—but until now, they have consistently held that nakedly partisan gerrymanders do not by themselves pose a resolvable constitutional problem. That’s because of a muddled Supreme Court decision in 2004 called Vieth v. Jubelirer. In Vieth, five justices agreed that partisan gerrymanders are likely unconstitutional. But Justice Kennedy refused to actually strike them down. Kennedy wrote that extreme gerrymanders may unconstitutionally burden the “representational rights of voters,” but that there was not yet any “manageable standard” by which to assess whether a gerrymander ran afoul of the Constitution. He hoped such a standard might “emerge in the future,” leaving the door open to a future challenge.

That standard appears to have emerged. In an opinion written by Judge Kenneth Ripple, a Reagan appointee, the federal district court concluded that Wisconsin’s gerrymander violated voters’ right to freedom of association and equal protection under the First and Fourteenth Amendments. The Constitution prohibits a redistricting scheme, Ripple wrote, when it is intended to impede the effectiveness of a citizen’s vote based on her political affiliation; does, in practice, dilute that vote; and cannot be justified on other legitimate grounds.

How can courts determine whether a gerrymander excessively dilutes votes? Simple, Ripple explained: They can use a mathematical formula called the efficiency gap. As the New York Times explains it: 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 fair redistricting scheme will create few wasted votes and thus an efficiency gap near zero. The more partisan the gerrymander, the higher the efficiency gap; a review of gerrymanders over the last four decades revealed that an efficiency gap of 7 percent will entrench the majority until new districts are drawn. The current Wisconsin gerrymander results in an efficiency gap of up to 13 percent.

For more:

- The Campaign Legal Center: Whitford v. Gill.
- Brennan Center for Justice: Whitford v. Gill.
- Modern Democracy: Today, I’m Thankful for: Whitford v. Gill.
- The New York Review of Books: American Democracy Betrayed.
- The decision from the U.S. District Court: Whitford v. Gill.

Regarding King v Burwell

ScotusBlog has a variety of takes on the latest Supreme Court challenge to the ACA.

- Click here for the main page.

I want to go over this in today's 2305:

- Will concern for states’ rights win out in subsidies battle? Today’s argument in Plain English.

Which justices voted to hear the gay marriage cases?

As we discussed earlier on in 2305, it takes four justices in order for a case to be heard by the Supreme Court. Given that some justices - notably Anthony Kennedy - seemed to suggest that the Proposition 8 case shoudl not have been accepted by the court, questions arose about which justices voted to hear the case and why.

The NYT speculates:

. . . When the justices gathered for their private conference on Dec. 7, they had many choices.

For starters, it was virtually certain that they would agree to hear one of several challenges to the federal Defense of Marriage Act of 1996. Two federal appeals courts had struck it down, and the court almost always reviews decisions from lower courts invalidating federal laws.

The question there, moreover, was the relatively modest one of whether the federal government must provide benefits to same-sex couples married in states that allow such unions. The case did not directly concern whether there is a right to same-sex marriage in other states.

So the justices chose one case on the 1996 law, United States v. Windsor, No. 12-307.

They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.

Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?

One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.

That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.

There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.

“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

The Swing Justice

A National Journal Story on perhaps the most powerful man in America, Anthony Kennedy. In an otherwise 4-4 court, he picks the winner.