Nature of the Case
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Facts
The Wisconsin Constitution gives the legislature the responsibility to “apportion and district anew the members of the senate and assembly” at the first session following each census. In 2011, a Republican Legislature passed, and a Republican Governor signed, the districting plan at issue here, known as Act 43. In 2012, Republicans won 60 Assembly seats with 48.6% of the two-party statewide vote for Assembly candidates. In 2014, Republicans won 63 Assembly seats with 52% of the statewide vote. Ps, twelve Wisconsin voters, filed a complaint challenging Act 43. P alleged that Act 43 is a partisan gerrymander that “unfairly favors Republican voters and candidates,” and that it does so by “cracking” and “packing” Democratic voters around Wisconsin. Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins.” Four Ps alleged they live in districts where Democrats have been cracked or packed. Ps argued that because Act 43 generated a large and unnecessary efficiency gap in favor of Republicans, it violated the First Amendment right of association of Wisconsin Democratic voters and their Fourteenth Amendment right to equal protection. The election official, Gill (Ds) moved to dismiss the complaint claiming that Ps lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative districts in which they vote. Ds’ motion was denied. Whitford (P), a retired law professor at the University of Wisconsin claimed that he suffered harm “related to [his] ability to engage in campaign activity to achieve a majority in the Assembly and the Senate.” Ps’ experts, Professor Kenneth Mayer and Professor Simon Jackman opined that-according to their efficiency-gap analyses-the Act 43 map would systematically favor Republicans for the duration of the decade. ds’ experts, Professor Nicholas Goedert and Sean Trende opined that efficiency gaps alone are unreliable measures of durable partisan advantage and that the political geography of Wisconsin currently favors Republicans because Democrats-who tend to be clustered in large cities-are inefficiently distributed in many parts of Wisconsin for purposes of winning elections. The court concluded that Ps had proved a violation of the First and Fourteenth Amendments. The court set out a three-part test for identifying unconstitutional gerrymanders: A redistricting map violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment if it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Regarding standing, the court held that Ps had a “cognizable equal protection right against state-imposed barriers on [their] ability to vote effectively for the party of [their] choice.” The court stated that Ps suffered a personal injury to their Equal Protection rights. Judge Griesbach dissented stating that Ps had not attempted to prove that “specific districts . . . had been gerrymandered,” but rather had “relied on statewide data and calculations.” He argued that their proof, resting as it did on statewide data, had “no relevance to any gerrymandering injury alleged by a voter in a single district.” The District Court enjoined Ds from using the Act 43 map in future elections and ordered them to have a remedial districting plan in place no later than November 1, 2017. Ds appealed directly to the Supreme Court, as provided under 28 U. S. C. §1253.
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