United States District Court, W.D. Wisconsin
WILLIAM WHITFORD, ROGER ANCLAM, EMILY BUNTING, MARY LYNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE and DONALD WINTER, Plaintiffs,
GERALD C. NICHOL, THOMAS BARLAND, JOHN FRANKE, HAROLD V. FROEHLICH, KEVIN J. KENNEDY, ELSA LAMELAS and TIMOTHY VOCKE, Defendants.
OPINION AND ORDER
The question in this case is whether Wisconsin Act 43-the 2012 districting plan for the Wisconsin Assembly-is an unconstitutional partisan gerrymander. Plaintiffs are Wisconsin residents and Democratic voters who allege that the plan is “one of the worst partisan gerrymanders in modern American history.” Cpt. ¶ 1, dkt. #1. In particular, plaintiffs allege that Republican legislators drew the plan in secret, in consultation with a political scientist and without any input from Democrats, in an attempt to maximize Republican wins and minimize Democratic influence over the political process for as long as the plan was in place. In addition, plaintiffs allege that Republicans were successful in their attempt, gaining significantly more Assembly seats in 2012 and 2014 than their level of public support suggests. As proof that Republicans unfairly manipulated district lines, plaintiffs created their own plan, which they say satisfies traditional districting criteria such as compactness, contiguity and respect for political subdivisions as well or better than Act 43 but treats Democrat and Republican voters much more equally.
In an order dated December 17, 2015, dkt. #43, we denied defendants’ motion to dismiss after concluding that plaintiffs’ allegations were sufficient to state a plausible claim for relief. Now defendants have filed a motion for summary judgment, dkt. #45, which is ready for review. In addition, plaintiffs have filed what they call a “motion in limine” to exclude the opinions of one of defendants’ named experts, Sean Trende. Dkt. #70.
Defendants raise many important points in their summary judgment submissions. It may be that one or more of these objections carries the day in the end. However, we believe that deciding the case now as a matter of law would be premature because there are factual disputes regarding the validity of plaintiffs’ proposed measurement for determining the existence of a constitutional violation. Accordingly, we deny defendants’ motion for summary judgment and allow the case to proceed to trial.
We are also denying plaintiffs’ motion in limine without prejudice to plaintiffs’ renewing the motion at the conclusion of trial. Plaintiffs raise significant objections in their motion. However, because it is not necessary to consider Trende’s opinions in order to resolve the motion for summary judgment and because the trial will be to a court rather than to a jury, we believe the prudent course of action is to rule on the admissibility of Trende’s opinions after he has an opportunity to testify. Metavante Corp. v. Emigrant Savings Bank, 619 F.3d 748, 760 (7th Cir. 2010) (“[T]he court in a bench trial need not make reliability determinations [regarding experts] before evidence is presented.”); In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) (“[W]here the factfinder and the gatekeeper are the same, the court does not err in admitting the [expert] evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”).
To accommodate a court scheduling conflict, the trial will begin on Tuesday, May 24, 2016, at 9:00 a.m. The parties should be prepared to finish the trial in four days.
In the order denying the motion to dismiss, we considered three issues: (1) whether challenges to a partisan gerrymander were justiciable; (2) whether plaintiffs had standing to sue; and (3) whether plaintiffs stated a plausible claim for relief. We answered each of these questions in the affirmative. Because defendants do not raise any new arguments about justiciability or standing in their summary judgment submissions, we see no reason to discuss those issues in this opinion. Instead, we will focus on whether plaintiffs have raised any genuine issues of material fact with respect to the various objections raised in defendants’ motion for summary judgment. Fed.R.Civ.P. 56.
A. Legal Background
As the parties well know, there is much uncertainty in the law regarding partisan gerrymandering. Although the Supreme Court has well-established tests for analyzing alleged gerrymanders with respect to race, e.g., Miller v. Johnson, 515 U.S. 900, 916-17 (1995), and equal population, e.g., Evenwel v. Abbott, No. 14-940, 2016 WL 1278477, at *3 (U.S. Apr. 4, 2016); Brown v. Thomson, 462 U.S. 835, 842-43 (1983), the Court has struggled to determine the appropriate test for gerrymanders based on political affiliation. In Davis v. Bandemer, 478 U.S. 109, 118-27 (1986), a majority of the Court agreed that partisan gerrymander claims are justiciable under the equal protection clause and that the plaintiffs must prove a discriminatory intent and a discriminatory effect. However, the Court could not agree on a specific standard to apply, particularly with respect to determining a discriminatory effect. Compare Bandemer, 478 U.S. at 133 (plurality opinion) (“[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”), with id. at 161 (Powell, J., concurring in part and dissenting in part) (question is whether legislature acted solely for partisan ends to the exclusion of "all other neutral factors relevant to the fairness of redistricting”).
In Vieth v. Jubelirer, 541 U.S. 267 (2004), four Justices concluded that Bandemer should be overruled because partisan gerrymanders present political questions that cannot be answered by federal courts. Id. at 305 (plurality opinion). Four other Justices agreed that the Bandemer plurality did not provide a workable standard, but they disagreed with the plurality regarding justiciability and they proposed alternative standards for reviewing a partisan gerrymandering claim. Compare Vieth, 541 U.S. at 339 (Stevens, J., dissenting) (question is “whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles”), with Vieth, 541 U.S. at 346-51 (Souter, J., dissenting) (proposing burden-shifting framework modeled after McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), and Vieth, 541 U.S. at 360-61 (Breyer, J., dissenting) (question is whether there was “unjustified use of political factors to entrench a minority in power”).
In the middle, Justice Kennedy concluded that neither the Justices nor the parties had provided a workable standard, but he declined to close the door on future partisan gerrymandering claims. Id. at 306-08 (Kennedy, J., concurring in the judgment). Rather, he stated that “courts should be prepared to order relief” if “workable standards do emerge.” Id. at 317. He suggested that future cases could be guided not just by the equal protection clause but also by the First Amendment, focusing on the question whether a plan “burden[s] or penaliz[es] citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Id. at 314. See also Baldus, 849 F.Supp.2d at 853 (“[P]erhaps the Court will find some day that the First Amendment also protects persons against state action that intentionally uses their partisan affiliation to affect the weight of their vote.”).
Finally, in League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), the Court assumed that partisan gerrymanders are justiciable, but a majority concluded that the plaintiffs had failed to identify “a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.” Id. at 414. Again, the dissenting Justices proposed alternative standards in line with those they proposed in Vieth. Compare LULAC, 548 U.S. at 474 (Stevens, J., concurring in part and dissenting in part), with LULAC, 548 U.S. at 391-92 (Breyer, J., concurring in part and dissenting in part).
Since LULAC, the Supreme Court has not considered a partisan gerrymandering claim. Thus, it is left to parties bringing those claims and the lower courts considering them to continue to search for a workable standard that reflects a voter’s right to “fair and effective representation.” Reynolds v. Sims, 377 U.S. 533, 565 (1964). See also Baldus, 849 F.Supp.2d at 853 (“Justice Kennedy's pivotal opinion [in Vieth] appeared to throw the ball to the litigating parties to come up with a manageable legal standard.”).
B. Plaintiffs’ Proposed Standard
In this case, plaintiffs’ proposed test adopts the basic structure of a claim brought under the equal protection clause, which generally requires a showing of discriminatory intent and discriminatory effect. Bandemer, 478 U.S. at 127 (plurality opinion) (citing City of Mobile, Alabama v. Bolden, 446 U.S. 55, 67-68 (1980)). Perhaps in response to Justice Kennedy’s opinion in Vieth, plaintiffs’ complaint includes a claim under the First Amendment as well, but at this point, neither side has developed a separate argument under the First Amendment or identified any analytical differences between plaintiffs’ First Amendment and equal protection claims.
Plaintiffs’ proposed test has three parts. First, the plaintiffs must show that the defendants acted with discriminatory intent. More specifically, plaintiffs frame the question as whether the “plan was designed with the intention of benefiting one party and disadvantaging its adversary.” Plts.’ Br., dkt. #68, at 58. At oral argument, plaintiffs summarized this element as an intent to disadvantage on the basis of political affiliation and they said that they modeled the element on the standard in Bandemer. Trans., dkt. #89, at 47.
Plaintiffs’ most significant innovation in their test is the second part, with respect to discriminatory effect. Under this part, the plaintiffs must show that the plan “exhibited a high and durable level of partisan asymmetry in the first election after redistricting.” Id. at 59. Plaintiffs define “partisan symmetry” as “the idea that the electoral system should treat similarly-situated parties equally, so that they are able to convert their popular support into legislative representation with approximately equal ease.” Id. at 49 (internal quotations omitted). Plaintiffs say that partisan symmetry provides an appropriate basis for evaluating discriminatory effect because several Justices in LULAC relied on it or otherwise discussed it favorably. E.g., LULAC, 548 U.S. at 466 (Stevens, J., concurring in part and dissenting in part) (partisan symmetry is “undoubtedly a reliable standard for measuring a burden on the complainants' representative rights”) (internal quotations omitted); id. at 483-84 (Souter, J., concurring in part and dissenting in part) (“[N]or do I rule out the utility of a criterion of symmetry as a test. Interest in exploring this notion is evident. Perhaps further attention could be devoted to the administrability of such a criterion at all levels of redistricting and its review.”) (internal citations omitted). See also id. at 420 (opinion of Kennedy, J.) (declining to “altogether discount [partisan symmetry’s] utility in redistricting planning and litigation”).
In addition, plaintiffs say that partisan symmetry reflects the Supreme Court’s description of partisan gerrymandering in other cases. Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652, 2658 (2015) (partisan gerrymandering is “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power”); Vieth, 541 U.S. at 271 n.1 (plurality opinion) (gerrymandering is “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength”); Bandemer, 478 U.S. at 127 (plurality opinion) (gerrymandering is “the manipulation of individual district lines” causing a party’s “voters over the State as a whole” to be “subjected to unconstitutional discrimination.”). See also Vieth, 541 U.S. at 335 (Stevens, J., dissenting) (“Gerrymandering always involves the drawing of district boundaries to maximize the voting strength of the dominant political faction and to minimize the strength of one or more groups of opponents.”).
Finally, plaintiffs say that partisan symmetry is widely accepted among scholars as the most appropriate way to measure partisan fairness. Plts.’ Br., dkt. #68, at 50 (citing Bernard Grofman & Gary King, The Future of Partisan Symmetry As A Judicial Test for Partisan Gerrymandering After Lulac v. Perry, 6 Election L.J. 2, 6 (2007) (“We are aware of no published disagreement or even clear misunderstanding in the scholarly community about partisan symmetry as a standard for partisan fairness in plurality-based American elections since [1987.]”)).
Plaintiffs measure partisan symmetry with a metric they call the “efficiency gap, ” which is a figure that represents the difference between the parties’ “wasted votes” in an election. A vote is “wasted” under this analysis if it is either (1) cast for a candidate who lost the election or (2) cast for the winning candidate, but in excess of what the candidate needed to win. Plts.’ PFOF ¶ 6, dkt. #79. The efficiency gap for a particular election is the difference between the parties’ total wasted votes among all of the districts, divided by the total number of votes cast.
In the December 17, 2015 order, we noted the following example of an efficiency gap calculation provided in plaintiffs’ complaint:
Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties' respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
Cpt. ¶ 50, Dkt. #1.
The purpose of the efficiency gap is to capture in one number the extent to which voters of a particular party are “packed” and “cracked.” Packing means concentrating one party's supporters in a few districts so that they win by overwhelming margins. Cracking means dividing a party's supporters among multiple districts so that they fall short of a majority in each one. Vieth, 541 U.S. at 287 n.7. Plaintiffs say that a high level of cracking and packing (and thus a large efficiency gap) is indicative of discriminatory effect because, all things being equal, the number of wasted votes for both parties should be about the same. Moreover, plaintiffs say that if a plan produces an efficiency gap of greater than 7 percent after the first election, subsequent elections under the same plan are highly likely to continue to be skewed in favor of the same party, even if another party significantly increases its vote share. Plts.’ PFOF ¶¶ 12, 85-93, 114-18, 154, 170, dkt. #79. Thus, plaintiffs believe that an efficiency gap of more than 7 percent, combined with a showing of discriminatory intent, should trigger a presumption that the districting plan is unconstitutional.
Plaintiffs identify an alternative measure of partisan symmetry called “partisan bias, ” which they defined previously as “the difference between the shares of seats that the parties would win if they each received the same share of the statewide vote.” Plts.' Br., dkt. #31, at 9. However, neither side develops an argument in their briefs regarding the application of partisan bias to this case. At oral argument, plaintiffs suggested that partisan bias could be used as a kind of “robustness check” on the accuracy of the efficiency gap. Trans., dkt. #89, at 70. Because the parties did not explore this issue in their briefs, we decline to consider it at this time.
Finally, under the third part of plaintiffs’ proposed test, if plaintiffs prove both discriminatory intent and discriminatory effect, the burden shifts to defendants. In particular, the defendants must show that the plan’s “severe asymmetry” was “unavoidable” in light of “the state’s political geography and legitimate redistricting objectives.” Plts.’ Br., dkt. #68, at 1, 59. Plaintiffs say that they modeled this part of their test after the equal apportionment cases, in which the burden shifts to the state to justify a plan if the plaintiffs show more than a ten percent population deviation among the districts. E.g., Brown, 462 U.S. 835 at 842-43.
C. Application of Plaintiffs’ Standard
For the purpose of their motion for summary judgment, defendants do not deny that plaintiffs could prove their claim under their proposed standard. With respect to the first element, discriminatory intent, plaintiffs allege that Republican leaders in the state legislature hired a law firm and a political scientist to design an Assembly plan that would maximize the electoral advantage of Republicans. In particular, plaintiffs allege that the Republicans used past election results to measure the partisanship of the electorate and then to design districts that would either “crack” Democratic voters (dividing them into multiple districts to prevent them from reaching a majority) or “pack” those voters (concentrating them into a small number of districts). In this way, Republicans hoped to maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. Republican leaders drafted the plan in secret, without any input from Democrats, and then enacted the plan as Act 43 with little debate. Baldus, 849 F.Supp.2d at 845, 851 (summarizing process ...