In the late spring of 2011, Dale Schultz walked the short block in Madison from his State Senate office in the Wisconsin Capitol to the glass-paneled building of Michael Best & Friedrich, a law firm with deep ties to his Republican Party. First elected in 1982, Schultz placed himself within the progressive tradition that made Wisconsin, a century ago, the birthplace of the state income tax and laws that guarantee compensation for injured workers. In the months before his visit to Michael Best, Schultz cast the lone Republican vote against a bill that stripped collective-bargaining rights from most public employees.
But if Schultz had doubts about some of his party's priorities, he welcomed its ascendance to power. For the first time in his career, Republicans controlled the State Senate and the State Assembly as well as the governor's office, giving them total sway over the redistricting process that follows the census taken at the beginning of each decade. ''The way I saw it, reapportionment is a moment of opportunity for the ruling party,'' Schultz told me this summer.
Inside the law firm's doors, Schultz took the elevator to what party aides called the ''map room.'' They asked him to sign a nondisclosure agreement, which he did without complaint. Schultz sat down and was given a map with the new lines for his rural district west of Madison. He and his wife, a former school superintendent, own a 210-acre farm in the area, where they grow corn and beans and hunt pheasants. Schultz noticed that the newly drawn district mostly included precincts he'd won before. ''I took one look at the map and saw that if I chose to run for re-election I could win, no trouble,'' Schultz remembered. ''That was it.''
Nearly all of the 79 Republicans in the Wisconsin Senate and Assembly made a similar trip to the map room, signing the same secrecy pledge to see the new shape of their districts. The new maps efficiently concentrated many Democratic voters in a relatively small number of urban districts and spread out the remainder among many districts in the rest of the state. These are the twin techniques of gerrymandering, often called packing and cracking, which distribute voters to benefit the party that is drawing the district lines.
''So glad we are in control!'' one state senator wrote in an email to a key Republican aide after her visit. No Democrat was invited to Michael Best & Friedrich, though the Republican leadership paid $400,000 in legal fees on behalf of the Legislature as a whole. In July, the statewide maps were unveiled at a single public hearing.
The Legislature passed the plan a week later, with the support of every Republican, including Schultz, and no Democrats. In the next election, in November 2012, Republicans won only 47 percent of the vote but 60 of 99 seats in the Assembly. In the midterm year of 2014, they won 57 percent of the Assembly vote and 63 seats, and in 2016, they won about 53 percent of the Assembly vote and 64 seats. Wisconsin is a purple state: Barack Obama won it twice, and Donald Trump barely carried it, by 22,000 votes. But one-party control continues to produce policies — more union busting, abortion restrictions and lately $3 billion in proposed tax credits for the electronics giant Foxconn — associated with a deep-red electorate. ''I'd never seen anything like that before,'' Schultz said of the election results that followed the redistricting. ''I started to see how powerful and unbelievable the redistricting process was.''
The Republicans tried hard to keep the mapmaking process a secret. But they weren't successful. In the first of two lawsuits brought by Democratic voters, three federal judges berated Republican leaders in 2012 for ''flailing wildly in a desperate attempt to hide'' their methods. A year later, the court ordered Republicans to turn over three computers. One appeared to have been tampered with, and a hard drive on a second computer had been wiped clean. But in 2016, a computer expert hired by the plaintiffs in the second lawsuit found, on another hard drive, spreadsheets that used a powerful new gerrymandering tool, based on sophisticated computer modeling.
The tool was created by Keith Gaddie, a political-science professor at the University of Oklahoma. Gaddie devised a way to measure partisanship for every precinct, which two Republican aides and a consultant used to draw a series of possible maps. They matched those maps against a regression analysis that Gaddie devised, which showed how the districts would perform, in the aggregate, in the event of any likely electoral outcome. By modeling everything from a typical split between Republicans and Democrats to a big swing toward either party, Gaddie's techniques allowed the mapmakers to distribute voters with maximum advantage for Republicans, without fear of spreading their own supporters too thinly and thus imperiling safe seats.
When the Wisconsin Legislature enacted the maps into law, the Supreme Court had never struck down a redistricting plan on the basis of partisanship. In a key 2004 case, Vieth v. Jubelirer, three Democrats in Pennsylvania sued the Republican-controlled Assembly for gerrymandering the state's congressional maps. Justice Antonin Scalia, in an opinion joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, questioned the premise that courts could address partisan gerrymandering. They rejected the Pennsylvania voters' claim and voted to shut the door on such suits in the future. The Constitution explicitly gave state lawmakers the power to draw the lines, Scalia pointed out, providing that Congress may also ''make or alter'' them — while saying nothing about a role for the courts.
Justice Anthony M. Kennedy voted with the four conservatives against the Pennsylvania voters but, writing for himself, said that while no ''workable standard'' yet existed for striking down a redistricting plan on the basis of excessive partisanship, such a standard could yet emerge.
Political scientists and mathematicians have been trying ever since to create a standard that will satisfy Kennedy — still the court's crucial swing vote. They argue that with the help of experts, courts themselves can use the mapmakers' advanced tools to assess and block gerrymandering. Last November, relying on the same kind of analyses as the map drafters, the three-judge panel in the second Wisconsin case struck down the state's 2011 redistricting law. The Republicans appealed to the Supreme Court, which will hear the case on Oct. 3.
The outcome of the Supreme Court's decision in Gill v. Whitford is likely to shape American politics for years and perhaps decades to come. Dale Schultz now wishes he had opposed the Wisconsin Assembly map. ''When you talk to people about our government, the thing they tell you is it's rigged,'' says Schultz, who left the State Senate in 2015. ''The redistricting we have now is the essence of that. Some people's votes don't count for much anymore. We have to change that.''
Since 2010, the number of competitive races in House elections has shrunk. That's partly because Democrats increasingly cluster in blue cities, geographically limiting their voting power. But it's also because redistricting has become more targeted as voters have become more predictable. Once you join Team Red or Team Blue, you're likely to stay on it. ''If you know how everyone is going to vote, and where they're going to live, then you have all the information you need,'' says Nathaniel Persily, a Stanford law professor who has served as a court-appointed redistricting expert in several states.
Both parties use gerrymandering to cement their hold on power. The effects are especially clear nationwide for congressional delegations, according to a 2012 analysis by the Brennan Center. In the 17 states where Republicans drew the maps this decade — for 40 percent of the total House seats in the country — their candidates won about 53 percent of the vote and 72 percent of the seats. In the six states where Democrats drew the lines, for only about 10 percent of the House, their candidates won about 56 percent of the vote and 71 percent of the seats. In the remaining states, the parties shared control over redistricting, or a court or an appointed commission drew the lines, or there were none to draw because there is only one congressional district.
The Supreme Court has long acknowledged that redistricting is first the province of the State Legislature while being willing to wade into disputes over it. In 1964, the court upheld the newly established rule of ''one person, one vote'' to end the practice of wildly uneven apportionment, which produced, for example, a map in Vermont with a State Assembly district for only 36 people and California State Senate districts that varied from 14,000 people to six million. Earl Warren, the chief justice who presided over an array of major decisions, including the order to desegregate schools, called it ''the most important case of my tenure on the court.'' Over the decades, lower courts have commonly overseen mapmaking to ensure that states draw districts roughly equal in population. Courts have also regularly monitored redistricting for racial bias. Beginning in the 1960s, the Supreme Court ruled that legislators can't carve up maps to intentionally diminish the power of black voters, and in the 1980s, Congress amended the Voting Rights Act to make states redraw maps if they have a discriminatory effect.
The Democratic plaintiffs who are challenging Wisconsin's map in Gill v. Whitford, represented by the Campaign Legal Center, will argue to the Supreme Court next month that partisan gerrymandering, like racial gerrymandering, violates voters' rights to be treated equally. They will also offer a second argument, based on the First Amendment, that comes from Justice Kennedy. He suggested in Vieth v. Jubelirer that gerrymandering could violate the right to freedom of expression and association, by ''subjecting a group of voters or their party to disfavored treatment by reason of their views.''
Given the longstanding recognition that politics factors into redistricting, the plaintiffs in Gill aren't asking the Supreme Court to stop gerrymandering entirely. They're asking the justices to say that extreme gerrymandering can go too far. It's like refereeing a boxing match, observed two political scientists, Bernard Grofman of the University of California, Irvine, and Gary King of Harvard, in a 2007 article for The Election Law Journal. ''We take it for granted that boxers are seeking to knock each other's heads off,'' they wrote, ''yet we still distinguish between a legitimate knockdown and one caused by a low blow.''
Grofman and King, who have studied redistricting for decades, proposed a baseline for assessing how much gerrymandering is too much. It's called partisan symmetry and has widespread support among social scientists. The degree to which a map deviates from that standard is the degree of its partisan bias. ''Measuring symmetry and partisan bias does not require 'proportional representation' (where each party receives the same proportion of seats as it receives in votes),'' Grofman and King wrote. That's important because the Supreme Court has rejected proportional representation, which the Constitution doesn't provide for, as a measure of mandating fairness in elections. Instead of dictating that a party with 46 percent of the vote takes 46 percent of the seats, symmetry means that if Republicans win 60 percent of the seats with 46 percent of the vote in one election, then Democrats should be able to win 60 percent of the seats with roughly the same percentage of the vote in another election. If election results suggest serious and enduring bias, then courts can give the Legislature defending the maps a chance to show that there's an innocent explanation.
Experts for the Gill plaintiffs used multiple metrics to show a high degree of bias in Wisconsin's Assembly elections. In striking down the Assembly map, the three-judge panel relied primarily on a metric called the efficiency gap, which measures ''wasted votes,'' as described by its creators, the University of Chicago law professor Nicholas Stephanopoulos and the political scientist Eric McGhee. Wasted votes are those cast for a losing candidate or above the number a winning candidate needed to prevail. The efficiency gap is low statewide when the number of wasted votes in a given election is similar for both parties, and it's high when one side wastes votes at a far greater rate, because its voters are densely concentrated or thinly spread. In other words, the efficiency gap tracks packing and cracking.
Stephanopoulos and McGhee found that Wisconsin's 2011 State Assembly map produced some of the highest efficiency gaps compared with election results in the state and in other states over the last four decades. ''It's very rare to have a map that's this bad for this long,'' Stephanopoulos told me. ''And it's really hard to flip.'' The three-judge panel in the Gill case found that as long as the 2011 map remained in place, ''in any likely electoral scenario, the number of Republican seats would not drop below 50 percent.''
Among the experts who think the means now exist for courts to referee gerrymandering fairly is Keith Gaddie, whose work enabled Wisconsin's Republican mapmakers. In a brief submitted to the Supreme Court in August, Gaddie and Grofman argue that social scientists can identify exactly how much the differential treatment of voters is ''man-made'' — a result of deliberate efforts by the party in power to penalize the opposition. I called Gaddie to ask how his stance squares with his earlier role. ''I didn't draw any maps in Wisconsin,'' he said. ''I helped them construct measures and tools. They made decisions and drew lines.'' When I asked if he would do the same thing again, Gaddie said, ''I don't do this work anymore,'' and hung up.
In their brief to the Supreme Court, Republicans in the Wisconsin Legislature called the lower court's decision to strike down the 2011 maps ''not only wrong, but dangerously so.'' Accepting the efficiency gap as a metric of partisan bias, the brief argues, unfairly penalizes Republicans for the geographic advantage that Democratic voters have provided by packing themselves into cities like Milwaukee and Madison. Allowing cases like Gill to proceed will serve only ''to increase the federal judiciary's already outsized role in the redistricting process.''
One expert on the Republicans' side, Nicholas Goedert, a political scientist at Virginia Tech, is critical of the efficiency gap and the other metrics of partisan bias, especially based on the results of only one election. Some redistricting maps from this decade scored high for bias one year and then looked much better after a second election. ''Look, I'm a progressive Democrat,'' Goedert says. ''But I'm not going to advocate for courts playing an inappropriate role and using an inappropriate test.'' Goedert argues that rather than turning to the courts, opponents of gerrymandering should push for commissions. Bipartisan or nonpartisan appointees now draw statehouse lines in 13 states and congressional lines in six, including Arizona, California and New Jersey. States with commissions tend to have more competitive races with less partisan bias, scholars have found.
The Supreme Court's conservative wing will probably argue that judges should stay out of redistricting, just as it did in Vieth. Kennedy could join this group and simply shut the door on partisan gerrymandering challenges. Or he could join the four liberals, who are likely to see Wisconsin's redistricting as unconstitutional, and find that, at long last, the social scientists have come up with the ''workable standard'' he previously sought. The court could also tell Wisconsin that it went too far without settling on a particular metric to be used in all future cases, leaving it to lower courts to decide.
Kennedy may also decide that courts should recognize party identity, not race, as the real reason for gerrymandering in many instances. Last year, a federal court struck down two congressional districts, drawn by the Republican-controlled Legislature in North Carolina, for excessively packing black voters. The Supreme Court agreed with the lower court in May. Kennedy dissented in part, joining the conservatives to argue that North Carolina packed the voters not because they were black but because they were Democrats. ''Maybe a persuasive argument to Kennedy now is, 'O.K., we've been fighting over gerrymanders through the poisonous lens of race,' '' Persily suggests. '' 'We'd be better off calling them what they really are — partisan gerrymanders.' '' Division by party could be less fraught, as a focus for judges and Legislatures, than polarization by race.
The stance that the Supreme Court takes toward Wisconsin's State Assembly map will determine how courts look at the maps for congressional delegations in every state, in 2018 and beyond. The next round of redistricting, after the 2020 census, promises to be even more brutally efficient in maximizing partisan advantage than the last one. At the moment, experts estimate that to take back the House by a bare minimum of seats, Democrats would need to win the national popular vote by at least six points.
To Dale Schultz, that sounds like handicapping democracy. Schultz is now co-chairman of Wisconsin's Fair Elections Project, and he has been traveling his state, stumping for a nonpartisan redistricting commission. ''Maybe if the Supreme Court sees the wisdom of our argument in Gill, that would start a chain reaction, and once and for all, we would take redistricting away from legislators,'' he says. ''Right now, they're picking the voters, instead of the other way around.''
This article in The New York Times magazine is By Emily Bazelon, a staff writer for the magazine and the Truman Capote fellow at Yale Law School. It appeared on August 29, 2017.
September 5, 2017
Addendum. This is the SCOTUS case that will decide all. Campaign Legal Center Files Brief in Landmark SCOTUS #Gerrymandering Case, Gill v. Whitford. #FairMaps RELEASE: bit.ly/2wcYtOu
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