Gill v. Whitford — Court Opinions to Voters: Here's How You Win

In Wisconsin gerrymandering case, voters
have to wait while Republicans rampage.
Waiting image by Edward Hopper.

The United States Supreme Court did more than provide voters with a roadmap back to the Court in Gill v. Whitford, Wisconsin's gerrymandering case.

The four liberal judges' concurring opinion built a legal yellow-brick road and a fast-track for Wisconsin voters to prevail against the Republican state-election riggers, going so far as to suggest evidence, argument, type of plaintiff and harm claims that would presumably snag at least Justice Anthony Kennedy's vote.

That's a pretty good result from an order to remand to lower court that has Republicans pretending to ballyhoo.

The three-judge, lower-court panel, except for Federalist Society-linked, rightwing and corrupt Judge William Griesbach, will likely not be amused by Republican stalling this time around.

Wisconsin Republicans are lying about the no-decision, passing Roberts' opinion off as an unanimous decision on the merits, which it definitely is not, an indisputable fact that everyone except for Gov. Scott Walker (R) and Attorney General Brad Schimel (R) understands.

Gill v. Whitford is not a "reversal," as Schimel pretends. It's a do-over.

Concludes Chief Judge John Roberts: "The judgment of the District Court is vacated, and the case is  remanded for further proceedings consistent with this opinion," (p.22).

Further proceedings in this case means litigation at the three-judge panel in the Court of Appeals for the Seventh Circuit jurisdiction, then directly back to United States Supreme Court.

Roberts went out of his way not to dismiss the claims, calling the claims "unsettled," (p.21) and unresolved. Kennedy likely forced this most-significant of concessions by Roberts. The two Soviet-minded justices, Thomas and Gorsuch, write in a concurring opinion they want the case dismissed.

Though Roberts frustrates voting rights by dismissing the argument that engineering one-party control of the legislature through gerrymandering is a mere "generalized" claim not sufficient for the Court to hear and decide, a ridiculous position, the take-away from Gill v. Whitford is obvious.

Roberts wants to decide the case, and wants a nationwide, precedent-setting (and narrow) remedy for voters getting the shaft on gerrymandering by craven state politicians.

Frustrating for sure, because now pro-democracy forces have to wait and Republican-appointed justices' forced a punt on a case they should have decided now.

But from a Supreme Court that is hostile to Due Process claims, perverse on the First Amendment and corrupted for Republican interests on political cases, there is ample reason in the opinions for voters to celebrate: A coming victory in a year or two assuming Anthony Kennedy does not retire.

Wisconsin Gerrymandering Case — Sent Back to Lower Court for Further Proceedings

Updated: "[P]artisan  gerrymandering  injures  enough  indi­viduals and  organizations  in enough concrete ways to  ensure  that  standing  requirements,  properly  applied, will  not often or long  prevent  courts  from  reaching  the merits  of  cases  like  this  one.  Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy."
—Justice Kagen, joined by Justices Ginsberg, Breyer and Sotomayor, (p.2 of concurring opinion)
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Wisconsin's Republican gerrymandering scheme is remanded back to lower court for further proceeding, the United States Supreme Court ruled today, (Howe, SCOTUSBlog).

The court sends the case back for further proceedings, "in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion," notes Amy Howe.

Decision is here.

Writes Howe:

The court explains that it would normally order the dismissal of the plaintiffs' claims, but this "is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unreslved." So the court sends the case back to the district court to give the plaintiffs a chance to show that they themselves have suffered "concrete and particularized injuries."

by Amy Howe 9:21 AM

What happened is the swing-vote Kennedy is so weak and suspicious of liberty claims that the four liberal justices went along with remanding the case so plaintiffs, voters, can establish incontrovertible standing and harm inflicted by the Republican redistricting scheme in Wisconsin.

The concurring opinion by Kagen, joined by the three liberal justices, makes clear Kennedy as well is looking for a precedent-setting opinion that applies nationwide, not statewide in Wisconsin.

Writes Kagen, (p.2 of concurring opinion):

Partisan gerrymandering, as this Court has recognized, is  'incompatible  with  democratic  principles.'   Arizona State   Legislature v.   Arizona   Independent   Redistricting  Comm’n,  576  U.  S.  ___,  ___  (2015)  (slip  op.,  at  1)  (quoting  Vieth v.  Jubelirer,  541  U.  S.  267,  292  (2004)  (plurality  opinion); alterations omitted).
More effectively every day, that practice enables politicians to entrench themselves in power  against  the  people’s  will.  And  only  the  courts  can do anything to remedy the problem, because gerrymanders benefit those who control the political  branches.  None  of  those  facts  gives  judges  any  excuse  to  disregard  Article III’s (United States Constitution and standing to litigate) demands. The Court is right to say they were not met here. But partisan  gerrymandering  injures  enough  indi­viduals and  organizations  in enough concrete ways to  ensure  that  standing  requirements,  properly  applied, will  not often or long  prevent  courts  from  reaching  the merits  of  cases  like  this  one.  Or  from  insisting,  when they do, that partisan officials stop degrading the nation’s democracy.  

Liberty-loving voters just have to wait another year, and hope Kennedy does not retire.

Wisconsin Legislative Districts Will Likely Stay Same for 2018 after Gerrymandering Case

Molly McGrath (left), a voting rights attorney with the ACLU,
works with Madison residents to get the IDs they
need to vote under Wisconsin’s restrictive voter-ID law.
(Courtesy of Molly McGrath). From In These Times.

The Wisconsin congressional and state voting districts will remain the same for the 2018 elections, no matter the decision of the gerrymandering case before the United States Supreme Court, (Gill v. Whitford, Mal Contends), (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Military and Overseas Voter Empowerment Act (MOVE)

This is because in part the 2018 voting process for the mid-term general elections will begin on June 28 one month from today, in accordance with federal law pertaining to military and overseas voters, (Military and Overseas Voter Empowerment Act (MOVE)).

MOVE mandates states transmit ballots for federal elections "to absent uniformed services and overseas voters no later than 45 days before federal elections." The manner of transmission of ballots in Wisconsin is absentee ballots, including for military voters the use of electronic absentee ballots, if requested.
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June 1 is the deadline for congressional and state candidates to submit nomination signatures and other paperwork to qualify for candidacy.

To change the voting rules of the 2018 Wisconsin mid-term elections in the middle of the election process would present Due Process and Equal Protection violations inflicted on voters and candidates.
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In the 2016 presidential general election, 819,316 voters cast absentee ballots, a figure likely to be approached in this year's mid-term elections because of increased voter access in defiance of Republican voter suppression efforts, and in accordance with residents' right to vote under the Wisconsin Constitution.

Wisconsin in Waiting Mode for Democracy Protection and Restoration

Madison, Wisconsin—Citizens here are waiting for a ruling from the United States Supreme Court to find out if democracy will survive in Wisconsin.

Republicans have transformed election law to obstruct voters, empowered white poll workers to suppress voters, gerrymandered state and congressional districts to elect as many Republicans as possible, infused dark money, among other anti-democracy efforts.

The objective is to enact Republican public policy in opposition to the public will.

One example is the legislative and administrative law attack on clean and safe water creating a crisis that has sent children to the Emergency Room, imperiled the health of communities and polluted rivers, streams, lakes and aquifers

Gov. Scott Walker threw in a new voter obstruction technique this year: Refusing to hold elections to fill vacant legislative seats.

In state senate district one in northeastern Wisconsin, State Sen. Frank Lasee, (R-De Pere), resigned in Dec, 2017. Gov. Scott Walker has publicly refused to call a special election that most observers believe the GOP would lose though the district is gerrymandered Republican.

The Democratic Party of Wisconsin to this point has not launched a public case calling for a special election. One Door County resident in senate district one told me, "nobody is doing anything, the Democrats?" He laughed.

Can you imagine if the roles were reversed? Republican outrage would blanket news coverage across the state.

Progressive writers are making the legal and political case for special elections, and it's writers filling the void where one would reasonably expect the Democratic Party to be.

Meanwhile, voters wait for the Supreme Court to rule on the Gill v. Whitford gerrymandering case from Wisconsin, in light of positive legal developments for voters and democracy against North Carolina Republicans.

From the Raleigh News Observer:

Rick Hasen, a professor at California-Irvine, is often said to be the nation’s leading election law expert. Hasen wrote that the decision could hardly be seen as a surprise, given what our legislature did. 'If there is any case that could be invalidated as a partisan gerrymander, it is this one,' he indicated. It is 'the most brazen and egregious' political electoral distortion yet seen in the United States. North Carolina leaders 'admitted the practice, but argued it should be seen as perfectly legal.'

The Supreme Court stayed the federal court ruling pending appeal. And it is unlikely the review will be squeezed into the current term, given the late scheduling adjustments that would be demanded. The court presently has two political gerrymandering cases on the docket. But Hasen thinks the impact of the North Carolina decision will be felt immediately. The court now knows 'what the future of gerrymandering will look like if it is doesn’t act in the Wisconsin or Maryland cases,' Hasen wrote.

The future would look even better with an energetic, activist and effective Democratic Party of Wisconsin safeguarding democracy.

Now, we look mostly to the courts for that kind of thing.

U.S. Fed Court Strikes GOP NC Gerrymandering; Opinion Bolds Well for Wisconsin Case at SCOTUS

A three-judge U.S. District Court panel struck down today the Republican-drawn gerrymandering map in North Carolina as unconstitutional.

Pro-voting rights advocates applauded the decision.

Anti-democracy forces of the Republican Party working for a One Party county say in reaction to the decision that because federal courts had not ruled previously to stop partisan gerrymandering, they should not rule so now, (The News and Observer).

Republicans reject social scientific evidence and constitutional reasoning in gerrymandering cases including this North Carolina case, Common Cause, et al v. Robert A. Rucho, and League of Women Voters, et al. v. Robert A. Rucho.

Wisconsin advocates of constitutional rights have cause to applaud the decision as they await the ruling of Gill v. Whitford at the United States Supreme Court.

The Republican gerrymandering effort is part of its larger anti-democratic project pursued against American citizens.
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From Nicholas Stephanopoulos in the Election Law Blog:

[T]he [North Carolina] court properly distinguished between the legal standard itself (the above three-part test) and quantitative evidence that is used to prove violations of the standard. This distinction eluded the defendants both here and in Whitford, who persistently conflated social science metrics with the underlying constitutional command. The court, though, observed that "plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward," adding that "these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards." The court further criticized the defendants for their "cynical" view that analysis should be discarded if it has "its genesis in academic research." "It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods." "The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories."

[T]he court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate. The court repeatedly defined gerrymandering as "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power." The court also observed that gerrymandering "constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will." And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process. Gerrymandering, of course, is the quintessential political malfunction.
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Supreme Court's Aversion to Social Science Is Perverse

Gill v Whitford Gerrymandering—An Easy Case That Would Destroy Republican Rule

Updated: Housing-discrimination litigation in federal court since the 1960s has often relied upon social scientific evidence — the Taueber dissimilarity and progeny measures — to demonstrate residential and urban segregation, a phenomena akin to American apartheid.

Milwaukee, site of the 2020 Democratic National Convention, remains the most segregated metropolitan urban area in the country, the perennial champ, (WISN News). It's apropos the DNC holds its fete in Milwaukee, as Wisconsin is the state on which the Court punted a decision to protect liberties.

Mayor Tom Barrett (D) is a de facto supporter of segregation and racial discrimination including routine violence, especially when committed by the Milwaukee police, who work with the assurance Barrett has their back. At his best, Barrett is inadequate.

Barrett and much of the United States Supreme Court share a disdain towards empirical science as a tool of demonstrating and remedying unyielding features of American society — racism, segregation and police violence.

While the Democratic Party is picking likely the next president in Summer 2020, the Supreme Court will have decided in the Summer 2019 if the constitutional rights of citizens to vote are expansive, and whether social science can be again sanctioned as a means to demonstrate the latest iteration (redistricting) of the American project of denying rights for the purposes of maintaining power over individual liberty.

How the Democratic Party fares in this affair is an open question, about to get more explosive in the next 14 months than at any point in modern American history, as progress on civil rights could be set back 55 years.


Rucho v. Common Cause, Lamone v. Benisek will determine the fate of American democracy.

Milwaukee 2020 will offer a major reaction to these landmark cases determining for one thing the direction of Democratic administrations of major urban areas, and the role of the president against what could be a Supreme Court ripping up rights by rights at the direction of white fascistic Party.
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Earlier this month [October 2017] at oral argument of the likely precedent-setting Wisconsin gerrymandering case, Republican justices displayed an obtuse mind-set revealing an incapacity to consider social scientific findings in determining whether a statute is unconstitutional, (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Writes Oliver Roeder this morning at Five-thirty-eight.com:

The Supreme Court does not compute. Or at least some of its members would rather not. The justices, the most powerful jurists in the land, seem to have a reluctance — even an allergy — to taking math and statistics seriously.

For decades, the court has struggled with quantitative evidence of all kinds in a wide variety of cases. Sometimes justices ignore this evidence. Sometimes they misinterpret it. And sometimes they cast it aside in order to hold on to more traditional legal arguments. (And, yes, sometimes they also listen to the numbers.) Yet the world itself is becoming more computationally driven, and some of those computations will need to be adjudicated before long. Some major artificial intelligence case will likely come across the court’s desk in the next decade, for example. By voicing an unwillingness to engage with data-driven empiricism, justices — and thus the court — are at risk of making decisions without fully grappling with the evidence.

This problem was on full display earlier this month, when the Supreme Court heard arguments in Gill v. Whitford, a case that will determine the future of partisan gerrymandering — and the contours of American democracy along with it. As my colleague Galen Druke has reported, the case hinges on math: Is there a way to measure a map’s partisan bias and to create a standard for when a gerrymandered map infringes on voters’ rights?

It's not that rightwing justices like Thomas, Gorsuch, Roberts and Alito cannot comprehend empirical investigation. It is that they do not care to when they are presented findings that point to a remedy helping disfavored segments of the population against whom these legal politicians have been appointed to work.

Without a United States Supreme Court ruling protecting Americans from the Republican Party's gerrymandering drawn after computer simulation after simulation to effectively take citizens out of the loop in democratic elections, Republican rule over citizens is all-but-guaranteed in the future.

In response to the early October oral argument of Gill v. Whitofrd, Nicholas Stephanopoulos, professor at the University of Chicago Law School specializing in election law, penned a column in Slate Magazine spelling out the criteria identifying an unconstitutional gerrymanders. (See also Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case.]

Writes Stephanopoulos:

As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a 'steak rub.' That is, it should not be imprecise and opaque in its makeup: 'I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.' In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:

1. Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.
   
   
2. Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.
   
   
3. Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.
   
   
4. Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that satisfy the state’s legitimate redistricting criteria. The challenged plan’s asymmetry is unjustified only if it exceeds that of most of the simulated maps.

Under this approach, there would be some easy cases, like the Wisconsin State Assembly plan at issue in Whitford. This plan’s authors admitted its pro-Republican intent. Its partisan asymmetry is worse than that of any map nationwide between 1972 and 2010. Its asymmetry would persist even if there was a massive Democratic wave. And its asymmetry is larger than that of any simulated assembly map. Conversely, it’s clear a plan would be upheld if it was designed through a bipartisan or nonpartisan process, if its asymmetry was historically small, if its asymmetry would disappear under slightly different electoral conditions, or if it was no more asymmetric than most simulated maps.

In playing dumb, social dominators like Gorsuch, Alito, Roberts and Thomas continue a sordid tradition in federal litigation of liberty claims the last 65 years. Unequal public schools? Public accommodation of ethnic minorities? Housing discrimination? Equality of law and processes? Voting? What? Do we litigate every public functioning and process if someone makes a liberty claim?

It may not seem like it at the moment, but Republican rule is imperiled as at any point in post-World War II history, and Gill v. Whitford is one of the last chances Republicans have to hang onto to power for 50 years against the will of the population.

One must hate the fact that Anthony Kennedy has become the pivotal vote again in this critical case for Americans when this man is mired in mediocrity.