In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional.
While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional.
In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans.
The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap. Continue reading