Rick Esenberg of the Wisconsin Institute for Law and Liberty thinks so. He explains why in a National Review Online column.
[D]espite decades of litigation, lawsuits alleging partisan gerrymanders have failed. Indeed, a number of justices have concluded that the time had come to give up and admit that such claims cannot be evaluated without making political, as opposed to legal, judgments and should be regarded as non-justiciable.
But last year, in Gill v. Whitford, a divided three-judge panel sitting in Madison, Wis., decided that it had found the principle that has eluded the Supreme Court. It held that the Wisconsin legislature had unconstitutionally drawn assembly districts to benefit Republicans. Even though the court acknowledged that the concentration of Democratic voters could be expected to give Republicans a natural advantage, it concluded that the percentage of seats won by Republican candidates in 2012 and 2014 departed “too much” from the percentage of all votes in 99 separate assembly races for Republican candidates. Earlier this year, the United States Supreme Court granted full review of the case, which will be argued in October.
If accepted by the high court, the theory urged by the plaintiffs in Gill would represent a dramatic, judicially imposed change in our political system. The fancy name chosen by the plaintiffs for this new standard is “the efficiency gap.” Democratic votes were “inefficiently” distributed among Wisconsin’s assembly districts so that many were “wasted” in strongly Democratic districts. In other words, Democratic voters were more heavily concentrated in certain districts than Republicans. Of course, “packing” the opposition’s votes is a well-known form of gerrymandering. But simply to note that the voters of one party are more heavily concentrated than voters of the other does not tell us whether, or to what extent, it is the product of where voters live as opposed to partisan skullduggery.
