Dean Gerken Files Amicus Brief in Partisan Gerrymandering Case


Dean and Sol & Lillian Goldman Professor of Law Heather Gerken has filed an amicus brief with the U.S. Supreme Court in Gill v. Whitford, a Wisconsin case that tests the constitutional boundaries of partisan gerrymandering.

The outcome of the Supreme Court’s decision in this case has the potential to shape American politics for years to come, according to legal experts.

Gerken, one of the country’s leading experts in the fields of election and constitutional law, filed the brief on behalf of some of the top social scientists and election law experts in the country.

“This may be the best chance to persuade the Supreme Court to set limits on partisan gerrymandering,” Gerken said. “With the 2020 redistricting cycle fast approaching, the time for the Court to act is now.”

In the Gill v. Whitford case, the plaintiffs argue that partisan gerrymandering —the practice in which the party-in-power draws districts to solidify its power —violates voters’ rights First and Fourteenth Amendment rights.

A three-judge panel in the case struck down the state’s redistricting law in November 2016. Republicans in the State appealed to the Supreme Court, which will hear the case on October 3, 2017.

“This may be the best chance to persuade the Supreme Court to set limits on partisan gerrymandering. With the 2020 redistricting cycle fast approaching, the time for the Court to act is now.” - Dean Heather Gerken

Relying on decades of jurisprudence, the brief specifically outlines how the Court should think about the question of judicial manageability. It also explains that the partisan symmetry standard put forward by the plaintiffs has deep historical roots and is universally supported by social scientists. A partisan symmetry standard evaluates the fairness of a districting plan by asking whether each side has the same opportunity to translates votes into seats.

“The standard makes no assumptions about the voting behavior of individual voters but simply assesses how a given plan translates votes into seats,” the brief explains. “Symmetry tests do not mandate proportional representation or require a particular ratio of seats to votes. They merely measure whether members of both parties have a chance to translate votes into seats in the same way.”

The brief also emphasizes the reasons why the partisan symmetry principle lends itself to judicially manageable standards, a crucial question for the Court.

“Tests for partisan symmetry are reliable, transparent, and easy to calculate without undue reliance on experts or unnecessary judicial intrusion on state redistricting judgments,” states the brief. “Under any partisan-symmetry test, Wisconsin’s legislative districts are grossly asymmetrical. Measured against other states, Wisconsin’s map is extreme. As a result, the Court can affirm the decision of the district court without privileging a specific test.”

The brief contends that now is a critically important moment for the Court to begin the important process of testing and reflection because “as voters and legislators have become more loyal to their parties, partisan self-interest threatens to swamp the districting process.”

The authors also acknowledge that new technology makes it easier for legislatures to craft partisan gerrymanders that “separate different populations of voters in exquisite detail.”

In concluding the brief, the authors urge the Court to strike down a practice that they believe has greatly reduced the ability for all voters to get a fair opportunity to make their voices heard.

“In this case, all partisan-symmetry tests point to the same conclusion,” states the brief. “In Wisconsin, partisans deliberately crafted legislative districts to insulate themselves from defeat. Those districts ensured one party could put its ideas into action while denying its opponents a fair opportunity to translate votes into a legislative majority. For these reasons, the Court should adopt a partisan-symmetry standard to adjudicate partisan gerrymandering claims and strike down Wisconsin’s egregiously gerrymandered Assembly maps.”

Those signing the brief include such luminaries as Professor of Social Sciences and Statistics at the California Institute of Technology Jonathan N. Katz; Professor and Director of the Institute for Quantitative Social Science at Harvard University Gary King; Professor of Politics and Director of the University of Virginia Center for Politics Larry J. Sabato; and Professor of Neuroscience and Molecular Biology and faculty associate in the Program in Law and Public Affairs at Princeton University Samuel S.-H. Wang.

Read the brief here.