On October 3, 2017, the Supreme Court heard argument in Gill v. Whitford, a case involving claims of partisan gerrymandering. In Wisconsin’s 2010 elections, Republicans won the governorship and acquired control of the state senate. In 2011, the Wisconsin legislature adopted a redistricting plan, Act 43, for state legislative districts. With Act 43 in effect Republicans expanded their legislative control in subsequent elections, reportedly winning 60 of 99 seats in the State Assembly with 48.6% of the statewide two-party vote in 2012, and 63 of 99 seats with 52% of the statewide two-party vote in 2014. In 2015 twelve Wisconsin voters sued in federal court, alleging that Act 43 constituted a statewide partisan gerrymander in violation of the First and Fourteenth Amendments to the U.S. Constitution. Defendants’ motions to dismiss and for summary judgment were denied, and following trial a divided three-judge district court panel invalidated Act 43 statewide. Act 43, the majority concluded, impermissibly burdened the representational rights of Democratic voters by impeding their ability to translate their votes into legislative seats even when Republicans were in an electoral minority. The court enjoined further use of Act 43 and ordered that a remedial redistricting plan be enacted, but the United States Supreme Court stayed that judgment pending resolution of this appeal.
The questions before the Supreme Court are as follows: (1) Whether the district court, in holding that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan instead of requiring a district-by-district analysis, ran afoul of the Supreme Court’s 2004 decision in Vieth v. Jubelirer; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in the Supreme Court’s 1986 decision in Davis v. Bandemer; (4) whether the defendants are entitled to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.
To the discuss the case, we have David Casazza, Associate at Gibson Dunn & Crutcher.