A Constitutional Right to Win? The Democrats Want One
Does the Democratic Party have a constitutional right to win a minimum number of elections? Of course not, but that’s what lawyers for a group of Wisconsin Democrats effectively argued at the Supreme Court in Gill v. Whitford. Despite decades of experience and legal precedent to the contrary, Democrats are asking the Court to enter the political realm and find for the first time that a legislative map is unconstitutional on partisan-related grounds. The Supreme Court should take a pass.
In the Badger State, which voted for President Trump and where Republicans hold nearly all statewide elected offices, Democrats ask the Supreme Court to overturn Wisconsin’s legislative map because their party has failed to translate its statewide vote totals into a proportionate number of wins in the state legislature.
Never mind that America has a winner-take-all system, where winning individual elections, not running up votes, is what matters. Or that Wisconsin Democrats cluster predominately in the cities of Milwaukee and Madison, while Republicans are spread out more evenly (and therefore are more competitive) throughout the state. Or that significant crossover voting exists in Wisconsin, where the majority of voters in fifteen separate legislative districts split their ticket between 2012 and 2016 – choosing one party’s candidate for President or Governor and the opposing party’s candidate to represent them in the state legislature.
And never mind that the law is not on their side. Nothing in the Constitution, or indeed the entire political history of the United States, suggests that a party has a legal right to win individual legislative elections proportionate to its statewide vote total.
In 2004, a four-Justice plurality in Vieth v. Jubelirer rejected a partisan gerrymandering claim against Pennsylvania’s congressional map. In doing so, they voted to overturn Davis v. Bandemer, a 1986 case in which the court upheld the map at issue but found that partisan gerrymandering claims are justiciable in theory, provided some “judicially discernible and manageable standard” exists for reviewing them.
Naturally, the Justices in Bandemer could not agree on what that standard was, befuddling the lower courts for years. Citing “[e]ighteen years of judicial effort with virtually nothing to show for it” as far as identifying that standard, the plurality in Vieth threw up its arms and declared partisan gerrymandering claims nonjusticiable altogether.
Justice Kennedy concurred with the outcome in Vieth, but left open the possibility that plaintiffs might someday be able to bring such a partisan gerrymandering claim “if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” For this reason, as is so often the case, the plaintiffs pin their hopes on Justice Kennedy.
The problem is that no “limited and precise rationale” exists today, nor will it likely ever. This time around, Democrats ask the Court to embrace their latest pet theory of “partisan symmetry” as measured by the “efficiency gap,” which assumes that parties should win roughly the same proportion of legislative seats as the total votes received across an entire state. Much has been written about the efficiency gap, but suffice it to say that not even the lower court, which found for the plaintiffs, chose to adopt it, while dissenting Judge Griesbach dismissed it as having “substantial theoretical and practical limitations that render it unsuitable for the task at hand.”
But even if the Justices could divine some “judicially discernible and manageable standard,” there remains a bigger problem for the Plaintiffs: Partisan gerrymandering of the kind alleged in Wisconsin simply does not violate any “well-developed and familiar” Constitutional right, which Justice Kennedy himself identified in Vieth as necessary to prove.
It is hard to imagine how equal-protection, free-speech, or free-association standards are violated in Wisconsin, or can ever be violated through partisan gerrymandering in the context of a robust, two-party system. As Justice Kennedy noted in Vieth, political classifications are permissible in the context of redistricting, because they are not “unrelated to the [legitimate] aims of apportionment.” Nevertheless, the plaintiffs would have the Supreme Court treat partisan gerrymandering, which is not unconstitutional, akin to racialgerrymandering, which emphatically is – as if the Democratic party were a “discrete and insular minority” protected by the Fourteenth Amendment. Far from “well-developed and familiar,” this is outlandish.
Second, partisan intent does not place a meaningful burden on any fundamental right or liberty interest. Simply put, nothing stands between the voter and the ballot box, and all votes are counted equally. What Wisconsin Democrats demand is a right, not for Democrats to participate in elections, but to win them.
Third, partisan districting places no burden on First Amendment speech or association. Legislative map-drawing does not prevent anyone from speaking or associating with, or voting for, the candidate or party of their choice. Nor do the plaintiffs claim this; instead, they assert a right for their candidates to be elected and for government control. Good luck finding that in the First Amendment.
And so, Democrats ask the Court to adopt a standard which is neither “judicially discernible” nor “manageable” in order to enforce a constitutional “right” which does not exist. Courts should be above the political fray - holding a legislature’s redistricting plan unconstitutional because a political party is unhappy with its election results would politicize the judiciary to its detriment. The Supreme Court should reverse.
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