Whitford and the Elusive Standard for Political Gerrymandering
A political gerrymander is “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” All of the Supreme Court Justices appear to agree a sufficiently extreme political gerrymander would violate the Constitution, but there remains a lack of consensus if there is a “judicially discoverable and manageable standard.” In Wisconsin, plaintiffs alleging an unconstitutional partisan gerrymander have proposed a standard test. Employing this standard, a federal district court recently held that Wisconsin Assembly districts, as established, are an unconstitutional gerrymander. This article examines the proposed and accepted test in Wisconsin to determine if this is a manageable standard for political gerrymandering. It concludes, ultimately, that the weaknesses found in this measure will not provide the manageable standard required by the Supreme Court.
Supreme Court Precedent
In Vieth v. Jubelirer, the Supreme Court plurality rejected the justiciability of a political gerrymandering claim. The case was challenged as an unconstitutional political gerrymander in violation of the Equal Protection clause of the Fourteenth Amendment centered on a Republican controlled redistricting. The plaintiffs claimed that the plan ignored all traditional districting criteria, such as local government boundaries, and was solely for partisan advantage. Four Justices were not persuaded that a judicially discernable standard could be found in any test and by a plurality held that political gerrymandering claims are nonjusticiable.
Justice Kennedy‘s concurrence was the deciding vote and left open the possibility that the Court may become involved in another partisan gerrymander case. While agreeing that this specific case was nonjusticiable because there was currently not a standard, he refused to sign on to the idea that the Court should be barred from all political gerrymandering claims. Rather, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established [Constitutional] violation.” The claim must rest on generally permissible classifications that “were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” He identified two problems of political gerrymandering claims as being a “lack of comprehensive and neutral principles” and “absence of rules to limit and confine judicial intervention.” Further, “if workable standards do emerge . . . [the] courts should be prepared to order relief.”
The Whitford Standard
Taking Justice Kennedy’s advice, the plaintiff’s in Whitford proposed a standard to analyze their partisan gerrymander claim. The proposed test has three prongs based on the equal protection doctrine, which require showing a discriminatory intent and discriminatory effect. The first prong proposed plaintiff’s burden to show a discriminatory intent by demonstrating the “plan was designed with the intention of benefiting one party and disadvantaging its adversary.” The second prong is proving the discriminatory effect of the plan, which must show “a high and durable level of partisan asymmetry in the first election after redistricting.” Finally, the plaintiff’s would need to propose an alternative plan and if successful in the first two elements, the burden shifts to the defendants to show that the plan’s “severe asymmetry” is necessary and legitimate or inevitable based on underlying political geography.
The second prong is where the plaintiffs have introduced their “innovati[ve]” metric, the “efficiency gap” (EG), in an effort to address Justice Kennedy’s concerns. The EG looks for the number of wasted votes for each party due to packing —putting all the supporters in a few districts—or cracking—dividing all the supporters among multiple districts so they fall short of a majority. The calculation is done by:
totaling, for each party, statewide (1) the number of votes cast for the losing candidates in district races (as a measure of cracked voters), along with (2) the number of votes cast for the winning candidates in excess of 50% plus one votes necessary to secure the candidate’s victory (as a measure of packed voters). The resulting figure is the total number of ‘wasted’ votes for each party 
The EG is the difference in the wasted votes for each party, divided by the overall votes cast. Therefore, the higher the EG, the more wasted votes. The plaintiff’s experts further testified that a threshold number greater than 7% in the first year shows that the plan will likely continue to favor the party for the life of the plan.
The district court considered each, in turn. When considering the intent prong, the court noted that when redistricting some level of partisanship is inevitable and permissible. The line when acceptable crosses to excessive is unclear but “intent to entrench a political party . . . signals an excessive injection of politics.” The plaintiffs, therefore, must prove that the legislature had a discriminatory purpose, or took “a particular course of action at least in part, ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Said purpose need not to be the sole intent of the legislature. Therefore, a legislature’s use of traditional districting standards does not preclude a claim of intent. Inquiry into intent should look at direct and circumstantial evidence including 1) the impact of the action; 2) the historical background; 3) the sequence of events before the decision; 4) “[d]epartures from the normal procedural sequence;” 5) history including statements, meetings, or reports.
The court held, with respect to the intent prong, that the legislature had acted with a discriminatory purpose. In this case, mapmakers held private meetings focused on calculations of partisan advantage for each district under different electoral outcomes. The only information presented by the map makers to each Republican assemblyman about their new district was partisan and did not provide any information about traditional districting standards. Moreover, the presentation to the Republican Caucus specifically noted that this map will determine the partisan makeup of the legislature for the next 10 years and that “they had an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.”
The court also adopted the proposed Discriminatory Effect prong. It found that the discriminatory effect was reality rather than not just theoretical. In 2012, Republicans had 48.6 percent of the vote but secured 60 out of 99 seats, and, in 2014, Republicans with 52 percent of the vote obtained 63 seats. Plaintiff’s experts showed statistically Republicans would retain their majority under any likely scenario, even when in the minority. Applying EG for the 2014 election resulted in a pro-Republican EG of 10%; and 13% in 2012. The court agreed with plaintiff’s experts who testified that over the life of the redistricting plan, the average pro-Republican gap would be 9.5%, above the 7% threshold. Therefore, the court held that both the actual effect and EG prove that there was and will continue to be a discriminatory effect.
With respect to the third prong, the court examined if the plan’s partisan effect could be explained by legitimate state purpose or neutral factors. The court did not decide who had the burden of proving this matter. The court agreed with defendants that at least circumstantially, the political geography of Wisconsin affords Republicans some modest advantage in districting with natural packing of Democrats in cities. But it found this does not explain the size of the disparate impact seen under the redistricting. The facts show Republican’s finalized statewide plans after making continual improvements based solely on expected partisan advantage with less burdensome plans created but not used. The court also addressed the plaintiff’s proposed alternative plan which had an EG of 2% in favor of Republicans. The plaintiff’s alternative plan is not needed to show a perfect map that accounts for all incumbency concerns, but rather to show that there is a possible alternative with less partisan effect.
Therefore, with some slight changes to the Plaintiff’s proposed standard, the court found there was unconstitutional partisan gerrymandering.
Critique of the Whitford Court test
In order to determine the long-term validity of this test, it is essential to determine if it fits with Justice Kennedy’s idea of a justiciable claim. In Veith, Kennedy, as the swing vote, made clear that a standard must be based on a limited, precise rationale; based on comprehensive and neutral principles; most importantly, it must be a standard that will limit and confine court intervention. 
The rationale for judicial action in Whitford is the established entrenchment of the Republican Party that would likely last the decennial period. This is established by proving all three prongs of the test. However, as the dissent points out, entrenchment is when a minority rigs the system so that a majority could not win. In Wisconsin, the Republican Party is not the minority. The state has elected a Republican governor in the last two general elections and received the majority of votes in 2010 and 2014.
The dissent takes the reasonable position that there should be a constitutional concern about the entrenchment of minority political parties. By contrast in this case, the power and history of political parties, as well as the ability for individuals to switch parties show a Republican majority party. Therefore, complaints about entrenchment seem to rather appear as if one side is complaining for a lack of equal representation. The dissent sees lack of equal representation the actual rationale for the majority opinion and one for which there is no constitutional requirement. EG is “really premised on a right to proportional representation.”  Further, by examining the absence of proportional representation as evidence of entrenchment, it appears as if the court is saying this is the basis of the action.
On the other hand, the court’s test appears to be comprehensive and based on neutral principles because it employs an objective and manageable measure, EG. EG appears to be a way to measure something that is clearly happening, cracking and packing, to see if it has gone too far. However, it should be determined if this test could be used to examine other types of distortions in traditional redistricting principles.
The dissent points out that the accepted test requires no examination if traditional redistricting principles were followed or if there was any distortion of traditional boundaries. Justice Kennedy did not give an indication if traditional districting principles would be needed in an appropriate test. The dissent believes Kennedy would see a legislature acting in line with traditional goals as not acting in a way unrelated to the “legitimate legislative objective.” However, Justice Kennedy may agree if the legislature was acting in an “invidious manner,” so this does not completely foreclose this argument.
The only other major current gerrymandering claim comes out of Maryland in which a specific Republican leaning district is accused of being cracked by the Democratic majority. While this paper will not examine the merits of this case, the claim is more in line with a customary gerrymander case in which the residents of a particular district claim traditional districting principles are being ignored. It is unclear how the proposed test would fair in such a claim or if it could be modified to apply to one particular split up district.
The widespread use of political factors in creating district maps and large swing in EG make it unlikely to limit and confine intervention by the courts. There is always some partisanship in redistricting, so the majority stresses the amount of intent required. They also point out though that if a legislature is aware of a Constitutional right, the intent of the legislature will be less direct. Therefore, if seems likely if this test is accepted it will only encourage a less transparent process to cover any partisan intent, as well as more plaintiff’s claiming circumstantial evidence is enough to show the prerequisite intent. One might counter that is why all the prongs are needed, but the dissent points out the volatility in the EG number in previous redistricting which were created by the courts. Therefore it seems unlikely that this test would confine court intervention.
Overall, though Justice Kennedy may look favorably on some aspects of the test, it seems unlikely it would be accepted as the proper measure.
 Arizona State Legis. v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015).
 Veith v. Jubelirer, 541 U.S. 267, 277-78 (2004) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
 See Whitford v. Nichol, 180 F. Supp. 3d 583, 587 (W.D. Wis. 2016).
 Whitford v. Gill, No. 15-cv-421-bbc, 2016 U.S. Dist. LEXIS 160811, at *247 (W.D. Wis. 2016).
 541 U.S. 267 (2004).
 Id. at 272.
 Id. at 277.
 Id. at 306 (Kennedy, J., concurring).
 Id. at 309.
 Id. at 306.
 Id. at 307.
 Id. at 306–07.
 Id. at 317.
 See Whitford v. Nichol, 180 F. Supp. 3d 583, 587 (2016).
 Id. at 587.
 Id. at 588.
 Nichol, 180 F. Supp. 3d at 590–91.
 Id. at 589.
 Whitford v. Gill, No. 15-cv-421-bbc, 2016 U.S. Dist. LEXIS 160811, at *168 (W.D. Wis. 2016).
 See id.at 169.
 Id. at 171.
 Gill, 2016 U.S. Dist. LEXIS 160811, at *114.
 Id. at 118.
 Id. at 120.
 Id. at 127–28 (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68(1976)).
 Id. at 146.
 Id. at 132.
 Id. at 149–151.
 Id. at 141.
 See id. at 155.
 Id. at 174.
 Id. at.173.
 Id. at 191.
 Id. at 218.
 Id. at 192.
 Id. at 226.
 Id. at 237–38.
 See supra notes 9–14 and accompanying text.
 Gill, 2016 U.S. Dist. LEXIS 160811, at *110.
 Id. at 263–64 (Griesbach, J., dissenting).
 Id. at 294.
 Id. at 295.
 See id. at 297–98.
 See id. at 273–74.
 Id. at 278.
 Id.; See supra note 13 and accompanying text.
 See supra note 13 and accompanying text.
 Shapiro v. McManus, 2016 U.S. Dist. LEXIS 112732 at *7–8 (D. Md. 2016).
 See Gill, 2016 U.S. Dist. LEXIS 160811, at *129–30.
 Id. at 331–32 (Griesbach, J., dissenting).