​Gill v. Whitford is a case that attempts to answer a question that's about 30 years old.
How do you define a gerrymandering?
Gerrymandering is a way to draw district lines to help your party and hurt your opponent.
The term gerrymandering is based on the name of a founding father named Elbridge Gerry.
Elbridge Gerry created a prototypical gerrymandering in Massachusetts that was lampooned in a cartoon
in 1812.
It looked like a salamander wrapped around the district that was to be divided up.
So when you make a portmanteau word of salamander and Elbridge Gerry's last name, you get Gerrymander.
Gerrymandering has been practiced by both parties, at least since the original gerrymander
in 1812.
In a gerrymander, the object of the game is to make the other party lose more seats.
In most states, in this country, district lines are drawn by state legislatures.
And state legislatures, of course, are people with partisans.
What the technique involves is to take your opponent's partisan and stack them in just
a few districts where they win overwhelming majorities, so that your party can win more
seats by smaller majorities.
This dispute has roots back to 2011.
In that year, the Republicans won both Houses of the Wisconsin legislature and the Wisconsin
governorship for the first time in 40 years.
They proceeded to draw new districts.
These districts were a classic gerrymander.
They were designed to hurt the Democrats, and they did.
In 2012, with 49% of the votes, Republicans managed to garner 61% of the seats in the
assembly in Wisconsin.
So with a minority of the votes, they managed to get a majority of the seats.
The next season in 2014, the Republicans won 52% of the votes, so they did have a majority,
but they garnered 64% of the seats in the legislature.
What the parties in this case claimed, is that the wasted votes, their party, the Democrats,
so exceed the wasted votes of the party that drew the lines, the Republicans, that there's
a constitutional violation.
According to the plaintiffs and according to a lot of social scientists who agree with
the plaintiffs, a wasted vote is basically any vote cast by a majority, which is greater
than 50% plus one, needed that's needed to win.
It's wasted in the sense that it's not necessary.
It's also any vote cast by the losing minority, which is basically all the votes that they
cast in a district where they lose.
Now, it's very clear under Supreme Court constitutional law, that there is no right to proportional
representation.
No one in this country has a right for their party to get 60% of the seats, because 60%
of the population voted for it.
Well if that right doesn't exist, then how can this case go forward, because the plaintiffs
have done is say that people have a right to a sort of altered proportional representation
based on their estimates of what the party should win if things were fair.
And this, in the view of some, in my view, is piling improbabilities on top of improbabilities.
How does one define what party should be expected to win in a hypothetical world where there's
no gerrymandering?
There's no clear answer to that question.
What happened in this case in the district court, was that by a two to one margin, the
district court accepted the plaintiff's claim.
They said that the constitution is violated with the intent to severely impede or impair
the effectiveness of voter's votes on the basis of their affiliation with other voters.
If the Supreme Court goes along with the district court's ruling, it would result in an explosion
of litigation.
Those cases would be ugly and contentious, and difficult to resolve, because there is
no clear test coming out of this case to say exactly what one looks at, in saying that
one set of districts is a gerrymander, and the next set of districts is not.
Every district line is put down with an intention, so how do you distinguish between extremely
bad gerrymander that violates the constitution and run of the mill gerrymandering, where
you're trying to hurt your opponent, which is what everyone tries to do.