Midwestern Conservative Thought for the 21st Century

Analysis of Gill v. Whitford (2018)

Christopher J. Schaefer, MA
9 July 2018

The United States Supreme Court, in Gill v. Whitford, one of the 2017-18 session’s most highly anticipated and potentially transformational cases, ruled that Wisconsin’s legislative maps were constitutional and did not need to be redrawn. Plaintiffs argued that Wisconsin’s legislative districts—redrawn by the Republican-controlled legislature following the 2010 census—diluted their statewide vote and caused them personal injury; suppositions the Supreme Court rejected.

Justice Roberts, writing for the nine-justice majority, argued that the petitioners lacked standing, meaning they could not demonstrate injury on a statewide level, as each individual resides in a particular legislative district and as such, can express their opinions by voting for members of the legislature. Despite upholding Wisconsin’s legislative maps, the Supreme Court “punted” on redistricting, by not dismissing Gill v. Whitford. Instead, the Supreme Court vacated the opinion and remanded the case back to the United States District Court for the Eastern District of Wisconsin, to provide plaintiffs with the ability to demonstrate again that the legislative maps, as currently drawn, caused them individual harm and diluted their votes. Two justices, Gorsuch and Thomas, in their concurring opinion, refrained from concurring with Part III of the majority opinion, which afforded plaintiffs with the ability to  “prove their standing on remand.” Rather, Gorsuch and Thomas maintained that the case should have been dismissed, as the plaintiffs, at both the circuit court and Supreme Court, failed to prove that Wisconsin’s legislative maps caused them harm and diluted their votes.

The plaintiffs, twelve Wisconsin Democratic voters, alleged that Wisconsin Act 43 (2011), legislation establishing Wisconsin’s representative districts, impaired the Democratic Party’s ability to convert Democratic votes into seats in the legislature. What is more, the plaintiffs argued that Act 43 “cracked” Democratic voters among various districts, making it nearly impossible for the party to prevail in a majority of legislative districts. Furthermore, they contend that Wisconsin Republicans, in redrawing the representational district maps, “packed” Democrats into a few districts (mostly centered in Dane and Milwaukee counties), that vote overwhelmingly Democratic. William Whitford, the lead plaintiff, and a retired law professor at the University of Wisconsin-Madison, resides in the 76th Assembly District, one of the state’s most heavily Democratic. The court question how injury could be done to Whitford when his district, even if redrawn, would produce the electoral outcome he desired—overwhelming victories for Democratic candidates. Justice Roberts, in the majority opinion, wrote of the 76th Assembly District, “Whitford testified that he lives in Madison in the 76th Assembly District, and acknowledged on cross-examination that this is, under any plausible circumstances, a heavily Democratic district. Under Act 43, the Democratic share of the Assembly vote in Whitford’s district was 81.9 percent; under the plaintiffs’ ideal map—their Demonstration Plan—the projected Democratic share of the Assembly vote in Whitford’s district would be 82 percent. Whitford, therefore, conceded that Act 43 had not affected his ability to vote for and elect a Democrat in his district” (p. 5).

Wisconsin Act 43 (2011) requires the legislature to draw districts that “are bounded by county, precinct, town or ward lines, in as compact a form as possible, and consists of contiguous territory.” Because voters reside in compact districts comprised of contiguous territory, the United States Supreme Court dismissed the plaintiffs’ challenge that the state’s representational maps caused them undue harm and diluted their vote. According to Justice Roberts. “A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative…The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes” (pp. 15-16). The majority opinion denoted that the case is centered on group political interests, not the legal rights of an individual.

To date, the United States Supreme Court has yet to strike down representational districts for being too partisan. Based on their opinion in Gill v. Whitford, it does not appear as if the Court is poised to do so anytime soon. In fact, Justice Kennedy, in Vieth v. Jubelirer (2004) maintained that the court should strike down all challenges to partisan-based apportionment, as no workable standard exists for redrawing legislative districts. Justices have repeatedly upheld partisan-based reapportionment, arguing that the Fourteenth Amendment’s Equal Protection Clause permits legislative bodies to draw legislative districts in any manner they see fit, so long as they are not racially motivated.

Plaintiffs in Gill v. Whitford will have the opportunity to again prove to the United States District Court for the Eastern District of Wisconsin, that the state’s legislative districts caused them undue harm and diluted their vote; an arduous endeavor considering they failed to do so before both the circuit court and United States Supreme Court. For now, partisan-based reapportionment remains the law of the land and Wisconsin’s current legislative districts will remain intact until after the 2020 census.

Christopher Schaefer, a presidential historian and political consultant, resides in Madison, Wisconsin, and is the author of four books: The Great President: The Policies that Shaped the Bush Legacy; 41 vs. 43: The Reluctant Realism of George H.W. Bush, the Primacy of George W. Bush, and the War in Iraq; The Presidential Simulation: A Student’s Guide to Understanding the American Presidency; and Project Mastodon: Building a Twenty-First Century Republican Party (2 vols.). Schaefer received his BA in Politics and Government from Ripon College and MA in Political Management from the George Washington University.


References

Gill v. Whitford, No. 16-1161 (18 June 2018). Retrieved from https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf

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