Partisan gerrymandering: a scatterplot clause in the Constitution

This is the first in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week.

The Supreme Court is set to hear Gill v. Whitford, an appeal from a three-judge panel finding that Wisconsin's state legislative redistricting was an unconstitutional partisan gerrymander. A read of the amicus briefs in support of the appellees, however, suggests that the resolution of this case doesn't have much to do with the Constitution.

Among the 32 amicus briefs filed in support of appellees, just 12 even bother to cite the United States Constitution (from my review of the tables of authorities). Among those, just eight cite the most relevant texts: the Fourteenth Amendment (the basis for the finding that partisan gerrymandering claims are justiciable under the Constitution in Davis v. Bandemer) or the First Amendment (Justice Kennedy's suggested alternative constitutional provision for assessing partisan gerrymandering claims in Vieth v. Jubelirer). Indeed, even the brief of Constitutional Law Professors fails to cite the Constitution. And the appellees themselves do not cite to the Constitution, either. [UPDATE: A commenter below notes that the briefs do refer to these constitutional provisions in other places. The Constitution is not cited or included in the Table of Authorities, but it is referred to.]

Briefs understandably do different things. But most appear to drift away from any attempt to figure out what the Equal Protection Clause means: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The briefs, and the public commentary surrounding them, have focused on something else: political evidence and political science data surrounding Wisconsin in particular and redistricting generally. Maps showing old and new district lines and political boundaries, shaded maps with voter preferences, bar charts, and scatterplots overwhelm the discussion.

It's true that the bulk of the case is about what evidence courts can, or should, use when evaluating a partisan gerrymander. But that gets a bit ahead of the first question, in my view: what does the Constitution demand in redistricting? That is, what does it mean to "deny" a person (perhaps, in particular, a voter) the "equal protection of the laws"? It appears to me, at least, that this question of law has been relegated to an assumption or afterthought as the data and tools and evidence dominate the debate. Others, I'm sure, may disagree, pointing to the language from cases like Bandemer or Vieth in establishing the relevant legal standard. But, I think, given the uncertainty for three decades in these partisan gerrymandering cases, I think spending time working with the text of the Constitution remains a question of prime importance.