Supreme Court

Is Math Legal? Gill v. Whitford Will Determine If We Can Have Nice Things

At oral arguments today, Justice Anthony Kennedy sounded like a mathlete.

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We could be on the cusp of a radical change to our entire electoral system. We could be about to end, forever, partisan gerrymandering that functionally disenfranchises millions of voters every election. OR, we could be about to do nothing and let our failed state sink deeper into polarization and rancor.

Like so much in this country, which path we choose all rests on Justice Anthony Kennedy.

The Supreme Court heard oral argument today in Gill v. Whitford. It’s a challenge brought against the State of Wisconsin, arguing that its entire redistricting plan is unconstitutional partisan gerrymandering.

Wisconsin argues that there is, essentially, no such thing as “unconstitutional” partisan gerrymandering. They argue that the question is a political question that is not justiciable. The challengers argue that it is justiciable, that Wisconsin’s statewide plan violates the First Amendment, and that they have a formula — actual math — that shows Wisconsin is suppressing the franchise of its voters.

The last time the Court took up partisan gerrymandering was Vieth v. Jubelirer in 2004. The battle lines there are the battle lines here in Gill. In Vieth, four conservatives thought partisan gerrymanders were political questions, four liberals thought they were subject to judicial analysis, Justice Anthony Kennedy thought, “I’d like to analyze this but I don’t know how. I’M SO CONFUSED, SOMEBODY PLEASE HELP ME.”

I’m paraphrasing a bit.

But, after Kennedy’s plea in Vieth, the eggheads got together and came up with a way to look at whether a partisan gerrymander was so partisan as to functionally disenfranchise people. They came up with something called the “efficiency gap” as a standard for measuring gerrymandering. The formula is meant to measure “wasted votes,” and the lower the ratio, the more “fair” the districts are. Wisconsin has a troubling high efficiency gap.

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(For a more detailed discussion on the math at play here, and how Gill v. Whitford came to be the battleground for this test, check out this More Perfect episode which explains everything.)

Look people, we live in the future. We have the math, and the data, to draw districts more fairly than ever before. Instead of having districts drawn by corruptible humans trying to draw away a community’s political voice, we can have Siri do it. At the very least, we can apply a technocratic standard to say, “Yeah… no, these districts are whack, please try again.” It is exceedingly simple to make this change, and Gill v. Whitford could bring us there in one landmark decision.

Except, there’s a reason why we can’t have nice things and the state of Wisconsin (and conservatives on the Court, generally) have a few excellent points. I hate their points, so I’ll just dump them in bullet points, but they’re not crazy:

  • Racial gerrymandering might violate a person’s equal protection rights, but partisan gerrymandering doesn’t necessarily violate anybody’s rights. You can still vote! You can still campaign. There’s no constitutional right that your vote has to be decisive.
  • The federal government is going to impose a standard that all the states have to follow when drawing their own state maps? Have you ever heard of a little thing called “federalism”?
  • We’re going to tell an entire state that its districts are unconstitutional because of math? Not because of a principle or a maxim or a statutory interpretation but, MATH? If lawyers liked math, they’d have gone to business school.
  • Speaking of “an entire state’s districts,” since when can people challenge an entire redistricting plan? Usually, people only have standing to challenge the constitutionality of their individual districts, not the entire redistricting regime.
  • If you invalidate Wisconsin’s districts, then the floodgates are opened. At least one party in almost every state is going to challenge that state’s districts. And they’ll CONCOCT different formulas out of thin air to show that they are aggrieved. It’ll never end.

I’m particularly sensitive to the last point. I fear the day when Facebook tells me who “should have won” my state and obviates the need for me voting at all. Especially since Facebook is likely to tell me that “Czar Ivan” is the new Governor of New Yorkgrad.

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But, that’s a problem for 2030. Right here in 2017, we could make a giant leap forward for democracy if we just acknowledged that there is a better way to judge a district than what the Republican Party of Wisconsin tells us.

Do we, does Anthony Kennedy have the guts to lead us on this new path?

Justice Kennedy asked for help in 2004. Help has been provided. The new formula could truly be: One Person = One Vote.

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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