“It is the prerogative of the state to determine the contours of a new map,” the three-judge panel ruled.That was a significant loss for the plaintiffs, after their win on the merits last fall.
The same three-judge panel ruled in November that Wisconsin’s legislative boundaries are an “unconstitutional partisan gerrymander” that “was intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”And the win on the merits is unlikely to survive Supreme Court review. The state is going to appeal to the Supreme Court, and the jurisdiction statute requires the Court to take the case on appeal directly from the district-level panel. No stop at the 7th Circuit. No petition for certiorari. This will be heard in the Supreme Court — which has never found any redistricting to be unconstitutional political gerrymandering.
This case introduced a new way to measure the equal protection problem in districting, the "efficiency gap" which looks for each party's "wasted votes":
Wasted votes, accrding [sic] to the efficiency gap’s creators, are the number of “lost” votes cast for losing candidates and “surplus” votes for victorious candidates in excess of what they needed to win.This test helps Democrats overcome the problem of having its voters concentrated in relatively small geographic spaces — that is, cities. It would make an equal protection problem out of a pattern of human behavior. It's basically the same problem Democrats have with the Electoral College: Their voters aren't spread out enough geographically. This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.
And yet if the case were to go through the current 8-person Court, I think the panel's decision would be affirmed by an equally divided Court. And if Hillary Clinton had won the election and had the Supreme Court appointment to make, the new Democratic-Party-favoring test may very well have become the law.