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Gill v. Whitford

United States Supreme Court

June 18, 2018

BEVERLY R. GILL, ET AL., APPELLANTS
v.
WILLIAM WHITFORD, ET AL.

          Argued October 3, 2017

          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

         Members of the Wisconsin Legislature are elected from single-member legislative districts. Under the Wisconsin Constitution, the legislature must redraw the boundaries of those districts following each census. After the 2010 census, the legislature passed a new districting plan known as Act 43. Twelve Democratic voters, the plaintiffs in this case, alleged that Act 43 harms the Democratic Party's ability to convert Democratic votes into Democratic seats in the legislature. They asserted that Act 43 does this by "cracking" certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and "packing" other Democratic voters in a few districts in which Democratic candidates win by large margins. The plaintiffs argued that the degree to which packing and cracking has favored one political party over another can be measured by an "efficiency gap" that compares each party's respective "wasted" votes- i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win-across all legislative districts. The plaintiffs claimed that the statewide enforcement of Act 43 generated an excess of wasted Democratic votes, thereby violating the plaintiffs' First Amendment right of association and their Fourteenth Amendment right to equal protection. The defendants, several members of the state election commission, moved to dismiss the plaintiffs' claims. They argued that the plaintiffs 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 district in which they vote. The three-judge District Court denied the defendants' motion and, following a trial, concluded that Act 43 was an unconstitutional partisan gerrymander. Regarding standing, the court held that the plaintiffs had suffered a particularized injury to their equal protection rights.

         Held: The plaintiffs have failed to demonstrate Article III standing. Pp. 8-22.

         (a) Over the past five decades this Court has repeatedly been asked to decide what judicially enforceable limits, if any, the Constitution sets on partisan gerrymandering. Previous attempts at an answer have left few clear landmarks for addressing the question and have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. See Gaffney v. Cum-mings, 412 U.S. 735, Davis v. Bandemer, 478 U.S. 109, Vieth v. Ju-belirer, 541 U.S. 267, and League of United Latin American Citizens v. Perry, 548 U.S. 399. Pp. 8-12.

         (b)A plaintiff may not invoke federal-court jurisdiction unless he can show "a personal stake in the outcome of the controversy, " Baker v. Carr, 369 U.S. 186, 204. That requirement ensures that federal courts "exercise power that is judicial in nature, " Lance v. Coffman, 549 U.S. 437, 439, 441. To meet that requirement, a plaintiff must show an injury in fact-his pleading and proof that he has suffered the "invasion of a legally protected interest" that is "concrete and particularized, " i.e., which "affect[s] the plaintiff in a personal and individual way." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, and n. 1.

         The right to vote is "individual and personal in nature, " Reynolds v. Sims, 377 U.S. 533, 561, and "voters who allege facts showing disadvantage to themselves as individuals have standing to sue" to remedy that disadvantage, Baker, 369 U.S., at 206. The plaintiffs here alleged that they suffered such injury from partisan gerrymandering, which works through the "cracking" and "packing" of voters. To the extent that the plaintiffs' alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, "assert[s] only a generalized grievance against governmental conduct of which he or she does not approve." United States v. Hays, 515 U.S. 737, 745.

         The plaintiffs argue that their claim, like the claims presented in Baker and Reynolds, is statewide in nature. But the holdings in those cases were expressly premised on the understanding that the injuries giving rise to those claims were "individual and personal in nature, " Reynolds, 377 U.S., at 561, because the claims were brought by voters who alleged "facts showing disadvantage to themselves as individuals, " Baker, 369 U.S., at 206. The plaintiffs' mistaken insistence that the claims in Baker and Reynolds were "statewide in nature" rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiffs right to an equally weighted vote was through a wholesale "restructuring of the geographical distribution of seats in a state legislature." Reynolds, 377 U.S., at 561. Here, the plaintiffs' claims turn on allegations that their votes have been diluted. Because that harm arises from the particular composition of the voter's own district, remedying the harm does not necessarily require restructuring all of the State's legislative districts. It requires revising only such districts as are necessary to reshape the voter's district. This fits the rule that a "remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established." Lewis v. Casey, 518 U.S. 343, 357.

         The plaintiffs argue that their legal injury also extends to the statewide harm to their interest "in their collective representation in the legislature, " and in influencing the legislature's overall "composition and policymaking." Brief for Appellees 31. To date, however, the Court has not found that this presents an individual and personal injury of the kind required for Article III standing. A citizen's interest in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes. Pp. 12-17.

         (c) Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiffs hope of achieving a Democratic majority in the legislature. Under the Court's cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers' deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs' establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs' votes that is "actual or imminent, not 'conjectural' or 'hypothetical.'" Defenders of Wildlife, 504 U.S., at 560. Third, the plaintiffs presented partisan-asymmetry studies showing that Act 43 had skewed Wisconsin's statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens. They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs' case as presented on this record. It is a case about group political interests, not individual legal rights. Pp. 17-21.

         (d) Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g., Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 354. Here, however, where the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U.S. ___, ___. Pp. 21-22.

218 F.Supp.3d 837, vacated and remanded.

          ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GlNSBURG, BREYER, Alito, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined except as to Part III. KAGAN, J., filed a concurring opinion, in which GlNSBURG, BREYER, and So-TOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.

          OPINION

          Roberts Chief Justice.

         The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the boundaries of the State's legislative districts. A group of Wisconsin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments.

         But a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has "a personal stake in the outcome, " Baker v. Carr, 369 U.S. 186, 204 (1962), distinct from a "generally available grievance about government, " Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam). That threshold requirement "ensures that we act as judges, and do not engage in policymaking properly left to elected representatives." Hollingsworth v. Perry, 570 U.S. 693, 700 (2013). Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion.

         I

         Wisconsin's Legislature consists of a State Assembly and a State Senate. Wis. Const., Art. IV, §1. The 99 members of the Assembly are chosen from single districts that must "consist of contiguous territory and be in as compact form as practicable." §4. State senators are likewise chosen from single-member districts, which are laid on top of the State Assembly districts so that three Assembly districts form one Senate district. See §5; Wis.Stat. §4.001(2011).

         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. Art. IV, §3. In recent decades, however, that responsibility has just as often been taken up by federal courts. Following the census in 1980, 1990, and 2000, federal courts drew the State's legislative districts when the Legislature and the Governor-split on party lines-were unable to agree on new districting plans. The Legislature has broken the logjam just twice in the last 40 years. In 1983, a Democratic Legislature passed, and a Democratic Governor signed, a new districting plan that remained in effect until the 1990 census. See 1983 Wis. Laws ch. 4. In 2011, a Republican Legislature passed, and a Republican Governor signed, the districting plan at issue here, known as Act 43. See Wis.Stat. §§ 4.009, 4.01-4.99; 2011 Wis. Laws ch. 4. Following the passage of Act 43, Republicans won majorities in the State Assembly in the 2012 and 2014 elections. 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. 218 F.Supp.3d 837, 853 (WD Wis. 2016).

         In July 2015, twelve Wisconsin voters filed a complaint in the Western District of Wisconsin challenging Act 43. The plaintiffs identified themselves as "supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates." 1 App. 32, Complaint ¶15. They alleged that Act 43 is a partisan gerrymander that "unfairly favor[s] Republican voters and candidates, " and that it does so by "cracking" and "packing" Democratic voters around Wisconsin. Id., at 28-30, ¶¶5-7. As they explained:

"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." Id., at 29, ¶5.

         Four of the plaintiffs-Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace-alleged that they lived in State Assembly districts where Democrats have been cracked or packed. Id., at 34-36, ¶¶20, 23, 24, 26; see id., at 50-53, ¶¶60-70 (describing packing and cracking in Assembly Districts 22, 26, 66, and 91). All of the plaintiffs also alleged that, regardless of "whether they themselves reside in a district that has been packed or cracked, " they have been "harmed by the manipulation of district boundaries" because Democrats statewide "do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly." Id., at 33, ¶16.

         The plaintiffs argued that, on a statewide level, the degree to which packing and cracking has favored one party over another can be measured by a single calculation: an "efficiency gap" that compares each party's respective "wasted" votes across all legislative districts. "Wasted" votes are those cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win. Id., at 28-29, ¶5. The plaintiffs alleged that Act 43 resulted in an unusually large efficiency gap that favored Republicans. Id., at 30, ¶7. They also submitted a "Demonstration Plan" that, they asserted, met all of the legal criteria for apportionment, but was at the same time "almost perfectly balanced in its partisan consequences." Id., at 31, ¶IO. They 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 plaintiffs named several members of the state election commission as defendants in the action. Id., at 36, ¶¶28-30.

         The election officials moved to dismiss the complaint. They argued, among other things, that the plaintiffs 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. A three-judge panel of the District Court, see 28 U.S.C. §2284(a), denied the defendants' motion. In the District Court's view, the plaintiffs "identified] their injury as not simply their inability to elect a representative in their own districts, but also their reduced opportunity to be represented by Democratic legislators across the state." Whitford v. Nichol, 151 F.Supp.3d 918, 924 (WD Wis. 2015). It therefore followed, in the District Court's opinion, that "[b]ecause plaintiffs' alleged injury in this case relates to their statewide representation, . . . they should be permitted to bring a statewide claim." Id., at 926.

         The case proceeded to trial, where the plaintiffs presented testimony from four fact witnesses. The first was lead plaintiff William Whitford, a retired law professor at the University of Wisconsin in Madison. Whitford testified that he lives in Madison in the 76th Assembly District, and acknowledged on cross-examination that this is, under any plausible circumstances, a heavily Democratic district. Under Act 43, the Democratic share of the Assembly vote in Whitford's district is 81.9%; under the plaintiffs' ideal map-their Demonstration Plan-the projected Democratic share of the Assembly vote in Whitford's district would be 82%. 147 Record 35-36. Whitford therefore conceded that Act 43 had not "affected [his] ability to vote for and elect a Democrat in [his] district." Id., at 37. Whitford testified that he had nevertheless suffered a harm "relate[d] to [his] ability to engage in campaign activity to achieve a majority in the Assembly and the Senate." Ibid. As he explained, "[t]he only practical way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate ideally in order to get the legislative product I prefer." Id., at 33.

         The plaintiffs also presented the testimony of legislative aides Adam Foltz and Tad Ottman, as well as that of Professor Ronald Gaddie, a political scientist who helped design the Act 43 districting map, regarding how that map was designed and adopted. In particular, Professor Gad-die testified about his creation of what he and the District Court called "S curves": color-coded tables of the estimated partisan skew of different draft redistricting maps. See 218 F.Supp.3d, at 850, 858. The colors corresponded with assessments regarding whether different districts tilted Republican or Democratic under various statewide political scenarios. The S curve for the map that was eventually adopted projected that "Republicans would maintain a majority under any likely voting scenario, " with Democrats needing 54% of the statewide vote to secure a majority in the legislature. Id., at 852.

         Finally, the parties presented testimony from four expert witnesses. The plaintiffs' 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. See id., at 859-861. The defendants' 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. See id., at 861-862.

         At the close of evidence, the District Court concluded- over the dissent of Judge Griesbach-that the plaintiffs had proved a violation of the First and Fourteenth Amendments. The court set out a three-part test for identifying unconstitutional gerrymanders: A re districting 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." Id., at 884.

         The court went on to find, based on evidence concerning the manner in which Act 43 had been adopted, that "one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade." Id., at 896. It also found that the "more efficient distribution of Republican voters has allowed the Republican Party to translate its votes into seats with significantly greater ease and to achieve- and preserve-control of the Wisconsin legislature." Id., at 905. As to the third prong of its test, the District Court concluded that the burdens the Act 43 map imposed on Democrats could not be explained by "legitimate state prerogatives [or] neutral factors." Id., at 911. The court recognized that "Wisconsin's political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process, " but found that this inherent geographic disparity did not account for the magnitude of the Republican advantage. Id., at 921, 924.

         Regarding standing, the court held that the plaintiffs had a "cognizable equal protection right against state-imposed barriers on [their] ability to vote effectively for the party of [their] choice." Id., at 928. It concluded that Act 43 "prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans, " and that "Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights." Ibid. The court turned away the defendants' argument that the plaintiffs' injury was not sufficiently particularized by finding that "[t]he harm that the plaintiffs have experienced ... is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute." Id., at 930.

         Judge Griesbach dissented. He wrote that, under this Court's existing precedents, "partisan intent" to benefit one party rather than the other in districting "is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches." Id., at 939. He observed that the plaintiffs had not attempted to prove that "specific districts . . . had been gerrymandered, " but rather had "relied on statewide data and calculations." Ibid. And he argued that the plaintiffs' proof, resting as it did on statewide data, had "no relevance to any gerrymandering injury alleged by a voter in a single district." Id., at 952. On that basis, Judge Griesbach would have entered judgment for the defendants.

         The District Court enjoined the defendants 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. The defendants appealed directly to this Court, as provided under 28 U.S.C. §1253. We stayed the District Court's judgment and postponed consideration of our jurisdiction. 582 U.S. ___ (2017).

         II

...


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