A few words on redistricting

Earlier this week, I finished discussing redistricting with my students in Election Law. There are, I think, overarching observations to be made regarding the ongoing redistricting litigation in Wisconsin.

There is almost no chance for a successful challenges to the plan as a "partisan gerrymander." This is not because the plan doesn't favor Republicans. It does and, if the Democrats had controlled both houses and the state house, they would have written a plan to favor their candidates.

The reason the challenge can't succeed is that such claims are effectively "nonjusticiable," i.e., the courts won't hear them. Put briefly, in  a 1986 case called Davis v. Bandemer, six justices held that claims of a partisan gerrymanded were justiciable. The plurality opinion (which, as a practical matter, established the standard for such claims) placed the bar at almost Olympian heights. Proving that the majority political party intended to benefit itself would not be enough. The constitution, according to the plurality, did not require that a map be "proportional" and the mere fact that a a plan makes it more difficult for one party to win seats would not render it constitutionally infirm.

To the contrary, a plan would be subject to successful constitutional challenge only if it would "consistently degrade a voter's or group of voters' influence on the political process as a whole."  The discrimination against a challenged group would have to be substantial and the plaintiff would have to produce evidence of "continued frustration of the will of a majority of voters or effective denial to a minority of voters of a fair chance to influence the political process."

Not surprisingly, plaintiffs had little success under Davis. In 2004, in a case called Vieth v. Jubelirer, four justices voted to abandon Davis and declare these claims nonjusticiable. In so doing, they noted that claims brought under Davis "almost invariablty failed." A fifth, Anthony Kennedy, would not go that far but he agreed that there was currently "no agreed upon model of fair and efficient representation" and, therefore, there was "no basis to define clear, clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights." But although he could not currently imagine a judicially manageable standard for assessing such claims, he was unwilling to conclude that someone might not develop one in the future. So, although he joined in the majority in rejecting the claim before the Court, he left the abandonment of Davis to another day.

So the current state of the law is that a majority of the Supreme Court either regards these claims to be nonjusticiable or cannot conceive of a standard by which they can be adjudicated. Even under  the older case law, the standard employed was such that the plaintiffs almost never won. Some scholars have concluded - and I agree - that this renders partisan gerrymandering claims "effectively dead." Rick Hasen, one of the leading election law experts in the country (whose text I use even though I frequently disagree with him) writes that plaintiffs will not "and should not win partisan gerrymandering claims until a consensus forms around a standard by which they can be evaluated.

So one does not have to engage in extensive analysis of the new plan to know that claims that it unfairly treats Democrats and benefits Republicans are going no where. It doesn't matter if that's what the Republican majority was trying to do. That claim is effectively dead as a matter of law.

Lest the commenters misunderstand, this is not an argument that partisan gerrymanders are "OK." It is a recognition of the fact that you can't effectively challenge them in court. The remedy for those who want to redistrict in some other way is political.

The plaintiffs in one of the current lawsuits, Baldus v. Brennan alleges that the plan has departed more than it has to from the prior map, causes "too many" people to have to wait six years to vote for Senator (an inevitable part of redistricting) and creates districts which, in the plaintiffs view are insufficiently compact and contiguous or consonant with "communities of interest."
But the US Consitution does not require maximal adherance to a prior map or districts that are contiguous and compact. (The Wisconsin Consitution might but the plaintiffs will be unable to  advance state constitutional theories in federal court.)
Nor do plans get invalidated because they split "communities of interest" which are, in any event, multiple and pluriform. The principal example advanced by plan opponents illustrates this. The new plan splits the counties of Racine and Kenosha by combining the cities of Racine and Kenosha. You can argue that this splits a community of interest, i.e., residence in the same county. But you can also argue that it respects one, i.e., residence in proximate urban areas.
There is, in addition, no rule that the number of people who must wait six years to vote for a state senator be minimized. Courts recognize that this is an inevitable consequence of redistricting and a requirement that the number be minimized would require abandoning other legitimate redistricting principles.

In other words, the lawsuit alleges a number of things that, even if true, do not form a basis for invalidation of the plan.

There is more room for a successful challenge under the Voting Rights Act but these challenges, even if successful (and they don't seem strong), are likely to affect the map only at the margins. To be sure, changing one part of a map is like pushing in on a balloon but, given the nature of Voting Rights claims and the concentration of minority populations, a successful challenge is not going to make the map materially more favorable to Republicans.

Whether or not the Republicans violated the Open Meetings law is another question entirely and one that I haven't looked at closely enough to have an opinion on. Maybe later.