On October 3, 2017, the U.S. Supreme Court heard Gill v. Whitford, a landmark case that could for the first time in U.S. history set a nationwide limit on extreme partisan gerrymandering. Common Cause has worked closely with the Campaign Legal Center, who is litigating the case, and the Brennan Center for Justice to organize states, cities, bipartisan current and former elected officials, academics, civil rights, and good government organizations, and others to speak with one voice against the manipulation of legislative districts for political advantage. Briefs in the case can be found below:
Briefs in Support of the Appellees
Common Cause’s brief argues that the trial court conflated First Amendment and 14th Amendment equal protection analyses in a way that required the plaintiffs to meet an even more difficult evidentiary burden than they should have been required to meet but that the plaintiffs did so nonetheless.
“Importantly, by declaring partisan gerrymandering beyond judicial reach, this Court would not only fail to prevent serious harm to democracy; it would actively accelerate that harm.”
“...a proclamation by this Court that the judiciary will never intervene would give a 'constitutional green light' to legislators in every State to begin gerrymandering openly to the limit of what technology will allow.”
“When judicial action is the only way to prevent political-process failure, this Court has never stood aside in deference to the very branches whose processes have failed.”
“More bluntly, the (political question) doctrine is not a suicide pact that compels the Court to stand mute while our democracy collapses around it."
This brief states that partisan gerrymanders frustrate majority rule by entrenching political parties in ways they do not earn on the merits. It adds that inaction by the Court would embolden partisan politicians to enact even more egregious gerrymanders as more precise voting data becomes available, which would be devastating for our democracy. Signers include Sen. Bill Brock, Sen. John Danforth, Sen. Bob Dole, Gov. James Douglas, Gov. Jim Edgar, Gov. John Kasich, Gov. Frank Keating, Sen. Richard Lugar, gov. Jock McKernan Jr., Gov. Bill Owens, Gov. Arnold Schwarzenegger, Sen. Alan Simpson, Gov. Christine Todd Whitman, and Lt. Gov. Corinne Wood.
“Partisan gerrymanders frustrate majority rule by entrenching political parties in ways they do not earn on the merits. They turn republican government upside down, with politicians choosing their voters instead of voters electing their politicians.”
“If this Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders as ever more precise voting data continually become available. That result would be devastating for our democracy.”
“[Partisan gerrymandering] entrenches political parties against popular will; it polarizes legislatures and creates gridlock; and it engenders voter cynicism about a political system that has been rigged to achieve predetermined electoral results, potentially in opposition to their will. Politicians now select their voters, instead of voters electing politicians.”
This brief argues that extreme partisan gerrymandering harms our political system and harms the functioning of the House in particular. It also states that extreme partisan gerrymandering is undemocratic and “cannot be reconciled with the Framers’ idea of a House of Representatives that would be directly accountable to the People through competitive and broad-based elections.”
“The result [of partisan gerrymandering] is a dynamic that amici see all too often: intense pressure to be driven by partisanship over all other considerations, leaving more moderate voters from the party that drew the district lines, independent voters, and voters from the disfavored party (including those who could have been cross-over voters) all feeling voiceless and unrepresented in the House.”
“When partisan gerrymanders devalue general elections and the general electorate and encourage partisan grandstanding for the base over independent judgment and delivering results to constituents, we all lose.”
“The Framers envisioned frequent, broad-based, competitive House elections that would create a relationship of “dependence” and tie House Members closely to the People. The entire point of extreme gerrymandering is to undercut that tie in order to achieve a narrow partisan political result.”
This brief makes the case that the major political parties have used technology to systematically exclude each other from state legislatures like never before. The impact has been “the death-knell of bipartisanship” as expensive and bitter state legislative campaigns have led to poisoned relationships between legislators and the safe seats created have irreparably harmed the relationship between legislators and their constituents.
“This lack of cooperation breeds distrust, dysfunction, and hostility. At best, Amicus Leach says, members of opposing parties ignore each other like boys and girls at 'an eighth-grade dance.' At worst, they war like the Montagues and Capulets: 'I’ll f––– any Republican I can,' an Illinois Democrat in charge of redistricting once hectored a Republican colleague.”
“As those in power grow accustomed to choosing their own voters, they stop treating the people as constituents to whom they must answer.”
“In Maryland, Democrats bragged that, in the post-2010 redistricting process, they would 'bury the Republicans six feet deep, faces up, so they won’t come out for 20 years.'"
“Amici explain that in many of their States, earning a reputation for bipartisanship is the surest way to lose the next primary—and their seat.”
“Wisconsin legislators in safe seats entirely ignore communications from voters of the opposite party: Phone calls are disregarded, letters thrown away, emails deleted. They refuse to hold hearings where voters might challenge them, and they skip community events. Assembly leaders have gone so far as to bar citizens from bringing writing materials to the Assembly—not even ‘paper for their kids to doodle on,’ according to Rep. Pasch. It is ‘an effort to silence and to control [constituents] in a very scary, nontransparent way.’”
Eighteen states argue that extreme partisan gerrymandering causes real and identifiable harms to the democratic system and that the three-prong test the trial court proposed protects the right of the public to fair representation while allowing states the flexibility to implement different ways to draw districts. In addition, the states argue that the test will not result in a massive increase in overturned maps because striking down a map requires proof of an intent to gerrymander and that a gerrymander did in fact occur while still allowing a state to demonstrate that neutral considerations dictated how the map was drawn.
“Extreme partisan manipulation of the redistricting process is problematic because it can effectively insulate a political party from any realistic attempt by the populace to unseat it… In other words, political control may be determined by the mapmakers, not the voters.”
“Durable party entrenchment through extreme gerrymandering causes real, identifiable harms to the democratic system, and to individual voters. It undercuts the fundamental premise that our republican form of government is representative. Moreover, by allowing fewer competitive races, it discourages voter participation, makes the public more distrustful of government, and reduces the responsiveness of elected representatives.”
“Most importantly, if this Court endorses particular metrics as suggestive of satisfying the effect prong of the test, States will be able to model those metrics and ensure that their maps stay within the bounds this Court sets.”
In this brief, the California Citizens Redistricting Commission (CRC) and FairDistricts Now Inc. present arguments to the US. District Court of Western Wisconsin advocating for standards and regulations requiring redistricting to be completed by neutral arbiters. Following the decision of Vieth v. Jubelirer, which ruled against districts containing different numbers of voters for violating the principle of one person, one vote, California and Florida amended their respective constitutions to prohibit partisan redistricting and ensure fair representation. Consequently, the CRC, an independent commission, was created in California, and FairDistricts Now Inc., a similar organization, was formed in Florida to prevent further incidents of gerrymandering. To ensure party-neutral districts, each institution must meet specific requirements before drawing a map; the CRC board has to consist of 5 Democrats, 5 Republicans, and 4 non-partisan members, and redistricting proposals are only approved if at least three members from each affiliation agrees. In Florida, the legislature must follow the nonpartisan criteria advanced by FairDistrict Now Inc. when redistricting. If they fail to do so, Florida Supreme Court may reject the plan and require new maps. Both case studies demonstrate that non-partisan redistricting is possible with the help of neutral agencies.
“Scholars who have studied the CRC’s maps have concluded that the CRC succeeded in adhering to constitutionally-mandated redistricting standards.”
“Amici curiae’s experiences demonstrate that while applying mandatory redistricting criteria in a non-partisan manner is not a simple task, neutral decision-makers can create apportionment plans in accordance with applicable law and without discriminating against voters based on their political views or associations.”
“A contemporaneous opinion poll found that of those members of the public who were aware of the CRC’s work, those who approved of it outweighed those who did not by a margin of nearly two to one.”
Sens. John McCain and Sheldon Whitehouse stress the dangers of ignoring the effects of partisan gerrymandering. They argue that the Supreme Court’s ruling in Vieth v. Jubelirer (2004) eliminated any fear of judicial review state legislators might feel when redistricting. This was evident in the redistricting processes following the 2010 census results, which heavily impacted the election results of 2012. Democrats in Maryland, for instance, created districts ensuring their party would win 7 of their 8 congressional seats. The senators also highlight technological advances in gerrymandering frequently referred to as “bulk” gerrymandering. Individuals can now easily utilize software to analyze mapping, census data, and partisan algorithms. Parties now rely on interest groups such as REDMAP and America Votes to create the most advantageous maps possible with this technology, which introduces significant sums of dark money into the redistricting process. Many ofVieth v. Jubelirer and affirm the district court’s decision ruling Wisconsin’s redistricting plan unconstitutional.
“From our vantage point, we see wasted votes and silenced voices. We see hidden power. And we see a correctable problem”
“Severe partisan gerrymandering undermines our democracy, which is based on fair and open elections that accurately reflect the will of the people and count every vote equally.”
“As Republicans and Democrats battle each other to control redistricting, the real losers are the American people. Sending delegations to Congress that do not conform to the results of elections leads to disinterested and justifiably disillusioned voters.”
In an amicus brief jointly submitted by NAACP Legal Defense and Educational Fund (LDF), LatinoJustice PRLDEF (LJP), Asian Americans Advancing Justice-AAJC, Asian Americans Advancing Justice –Asian Law Caucus, Lambda Legal Defense and Education Fund (Lambda) and The Leadership Conference on Civil and Human Rights (The Leadership Conference), we see an important articulation by civil rights organizations that the court needs to create a clear standard for measuring partisan gerrymandering based on a showing of invidious partisan intent.
“A properly structured partisan gerrymandering claim—one that requires proof of invidious intent to subordinate voters because of their partisan affiliation—is entirely consistent with the Voting Rights Act of 1965 (“VRA”).”
“History shows that both major political parties—Democratic and Republican—have drawn electoral districts in pursuit of their partisan interests in ways that have harmed minority voters. Particularly where existing causes of action afford no remedy for such manipulation, a justiciable cause of action for partisan gerrymandering can help protect minority voters.”
In this brief, Amici Curiae representing lawyers, city leaders, mayors, chief executives of various localities, and law professors specializing in local government law argue against partisan gerrymandering on the basis that the practice threatens local democratic governance. Local governments are the vital nexus between the population and the nation, and, as such, have played a critical role in engaging citizens and implementing policies in accordance with local needs since before the founding of this country. However, gerrymandering advances party interests over the interests of the state’s electorate, undermining the democratic legitimacy of state legislatures and their ability to accurately respond to the interests of local governments, arguably the aspect of government with the greatest impact on the lives of ordinary Americans.
“A decision in this case upholding the trial court’s invalidation of extreme partisan gerrymandering in Wisconsin will help restore public faith in state legislatures as responsible superintendents of the local governments within their boundaries."
“Intentional political gerrymandering may skew the representation of the state legislature far away from the majority or the median voter. In a politically moderate state, therefore, intentional political gerrymandering may result in a legislature that is far from moderate, skewing heavily toward a particular political party, ideological belief system, or set of issues.”
This brief offers a pointed and searing critique of the Wisconsin legislature’s amicus brief, which mischaracterizes the redistricting process in the state following the 2010 census. It states that the legislature “describes a fair, deliberative, policy-driven legislative process that bears no relation to the actual process by which new districts were drawn in Wisconsin.” It argues that the legislature failed to address “basic data that show the durability of a partisan majority riding the back of a well-drawn gerrymander.”
“The Legislature also complains that limiting partisan gerrymanders will impose great burdens on the Legislature. Yet with relative ease, a single political scientist, expert witness Kenneth Mayer, Professor of Political Science at the University of Wisconsin, was able to draw a map adhering better to traditional redistricting criteria than the Legislature’s map and that did not discriminate against voters based on political preference.”
“Individual Republicans, but not Democrats, were permitted to view their new districts at a secret location outside the Capitol building. Even those Republicans were not given access to the map as a whole and were sworn to secrecy contrary at least to the spirit of Wisconsin’s strong open meetings and records laws.”
“Were a party’s likely statewide success not largely predictable based on the party’s showing in prior elections, the Legislature would not have spent $431,000 of state money and weeks of effort analyzing past elections in various combinations of wards to test the durability of ever more partisan majorities against possible future swings in the relative public support for the two major parties.”
League of Conservation Voters, National Education Association, Wisconsin Education Association Council, League of Women Voters of Wisconsin, Dr. Anthony Evers (Wisconsin superintendent of public instruction) and George Meyer (executive director of Wisconsin Wildlife Federation)
This brief, nicknamed “bad effects on democracy,” argues that partisan gerrymandering “results in the adoption of state policies that are more partisan and extreme than the broad middle of voters would support.” Using Wisconsin as an example, the brief describes the deep cuts in funding for K-12 education and the University of Wisconsin system along with the elimination of basic environmental protections. These policies once had broad bipartisan support prior to the gerrymandering of Wisconsin’s legislature.
“Secure in their electoral majority, legislators have abandoned decades-old policies in support of state funding for public schools, by slashing state funding and prohibiting Wisconsin citizens from offsetting the cuts through local referenda to increase their own taxes to fund schools."
“Despite a robust history of bipartisan support for the UW System, the redistricting legislators have cut funding for the System by over $360 million.”
“The Legislature has done so much to undercut Wisconsin’s protections for natural resources that one retired Republican state senator exclaimed: ‘I think what’s going on is appalling . . . .I’m a pretty pro-business Republican. But a clean environment is essential to business. This is just wholly unacceptable.’”
Briefs in Support of the Appellants
Issues: Voting and Elections