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Editor’s Note: The following article by Gary S. Stein was published as part of the New Jersey Labor and Employment Law Quarterly Vol. 40, No. 1, which is distributed to members of the Labor and Employment Law Section. To learn more about joining a section of the New Jersey State Bar Association, email us at [email protected].

Whether the issue is partisan gerrymandering, racial gerrymandering, voter ID laws or other laws affecting the exercise of the right to vote, advocates of fair elections and less restricted voting have had difficulty chalking up victories before the United States Supreme Court. Two recent decisions by the Court reflect that trend. In Gill v. Whitford,¹ the Court reversed and remanded the matter for re-trial, concluding that the plaintiffs in a long-awaited partisan gerrymander case lacked standing.² In Husted, Ohio Secretary of State v. A. Philip Randolph Institute,³ the Court held that Ohio’s unusual statutory process for removing voters from the registration rolls on change-of-residence grounds does not violate either the failure to vote clause of the National Voter Registration Act or any other provision of that act.⁴

Gill v. Whitford

Although dismissals on standing grounds ordinarily attract little attention, the Gill case was closely watched by followers of the Court’s complex partisan gerryman­dering jurisprudence. Election law experts, as well as newspaper writers and media commentators, have long understood that the practice of partisan gerrymander­ing is one that undermines the ability of Congress to function effectively. The reason is straightforward: Whether produced by a Democratic or Republican state legislature, a highly partisan redistricting map inevitably produces safe seats for congressional—or for that matter legislative—candidates from the party responsible for drawing the map. Accordingly, a highly partisan gerry­mander of congressional seats in a Republican state routinely results in non-competitive general elections for Republican congressional candidates in that state. The same is true for Democratic candidates in a gerrymander orchestrated by that party.

When congressional elections are non-competitive, general election candidates of the prevailing party understand they run little risk of losing in the general election, and so their focus is on making certain they prevail in the primary. That focus typically induces candidates whose general election results are preor­dained by a partisan gerrymander to frame themselves as deeply conservative, if they are Republicans, or reliably liberal, if they are Democrats. Those positions provide protection against primary opponents that otherwise would try to run to the right of incumbent Republicans or to the left of incumbent Democrats.

Regrettably, the effect is that both Democrats and Republicans who win election to Congress often reflect the views of the more extreme wings of their parties, resulting in a highly polarized Congress of the sort that has dominated the political process for several decades. That polarization has prompted many public interest groups to litigate partisan gerrymander cases in order to persuade the Supreme Court to establish a standard that would invalidate extreme partisan gerrymanders as violative of the equal protection clause of the United States Constitution. Regrettably, the Court’s jurispru­dence has not yet arrived at such a standard.

In Davis v. Bandemer,⁵ an early gerrymandering case involving the Indiana State Legislature, the Court, by a narrow margin, held that although partisan gerry­manders are justiciable, plaintiffs seeking to invalidate a partisan gerrymander must prove more than that the gerrymander distorted the results of a single election, but rather that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”⁶ That standard, articulated by Justice Byron White in his plurality opinion for the Court, has been difficult, if not impossible to meet, with the result that virtually no challenges to partisan gerrymanders have been held to satisfy the rigid standard adopted in Bandemer.

The more conservative members of the Supreme Court consistently have taken the position that partisan gerrymanders are non-justiciable, either because the Constitution arguably authorizes Congress to inter­vene in the event a redistricting map is too extreme or because no satisfactory standard has been developed to determine when a gerrymander is too partisan to with­stand scrutiny. In the Court’s last attempt to address the issue, Vieth v. Jubelirer,⁷ four members of the Court ( Justices Antonin Scalia, Sandra Day O’Connor, Clar­ence Thomas and Chief Justice William Rehnquist) would have held that the plaintiff ’s challenge to the partisan congressional gerrymander of Pennsylvania’s congressional districts by the Republican Party was non-justiciable because no reliable standard existed to determine its validity or invalidity.⁸ Four members of the Court would have invalidated the map as a partisan gerrymander, but based on different rationales.⁹ Justice Anthony Kennedy, who voted to affirm the dismissal of the gerrymandering challenge, expressed the view that, although neither he nor the Court had found a reliable standard for evaluating the constitutionality of partisan gerrymanders, he did not believe that challenges to such gerrymanders were non-justiciable. Rather, he believed that a standard would be developed and adopted by the Court at some time in the future.¹⁰

The late Justice Scalia sharply criticized Justice Kennedy’s analysis, opining that it was an impossible and unacceptable legal position.¹¹ According to Justice Scalia, Justice Kennedy could not properly vote to affirm the dismissal of the plaintiff ’s complaint unless he believed the issue was non-justiciable or, on the other hand, knew the standard that should be applied in evaluating plaintiff ’s proofs and finding them wanting.¹² Justice Scalia’s sharp criti­cism of Justice Kennedy’s somewhat indecisive position on partisan gerrymanders is one reason why Gill v. Whit­ford was watched with hopeful anticipation by advocates for limitations on partisan gerrymanders.

The relevance of Gill v. Whitford to Justice Kennedy’s somewhat ambivalent position in Vieth is that the plain­tiffs in the federal district court proceeding, Whitford v. Nichol,¹³ who sued to challenge a Wisconsin legislative redistricting map known as Act 43, relied on a new standard for measuring partisan gerrymandering, which they characterized as the “Efficiency Gap.”¹⁴ Undoubt­edly, plaintiffs in the Whitford case hoped that the “Effi­ciency Gap” standard might satisfy Justice Kennedy’s belief that a reliable standard for evaluating partisan gerrymanders eventually would be adopted.

The district court in the Whitford case, relying on the plaintiff’s complaint, described the efficiency gap as follows:

[t]he efficiency gap captures in a single number all of a district plan’s cracking and packing—the two fundamental ways in which partisan gerrymanders are constructed. 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. Both cracking and packing result in “wasted” votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing). The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.¹⁵

The Court also used an example provided by the plaintiffs to demonstrate how the efficiency gap is calcu­lated:

Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties’ respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.¹⁶

The district court’s opinion in Whitford also noted that a comparison of state legislative redistricting plans from 1972 to 2014 revealed the median efficiency gap was close to zero, suggesting that neither party enjoyed an overall advantage in state legislative redistricting during that period.¹⁷

The Court noted that in the 2010 redistricting cycle, the efficiency gap had increased sharply to over six percent for state legislative plans. The Court observed that a seven percent efficiency gap was at the high end of the overall distribution of statehouse redistricting plans in the modern era, and that plans with an efficiency gap of that size are likely to be unusually durable for the favored party.¹⁸ The Court noted that in the 2012 legislative election, the current plan under review produced a pro- Republican efficiency gap of 13 percent, observing that in that election there were eight districts that Democrats won with over 80 percent of the vote, but no districts in which Republicans won by such a large margin.¹⁹

Based on its conclusion that the Wisconsin Redis­tricting Plan had been adopted with a discrimina­tory intent, and that it clearly had had a discrimina­tory effect, the Court denied the defendant’s motion to dismiss and allowed the case to go to trial.²⁰

Following the trial, the district court, relying in part on the efficiency gap standard, concluded that the Wisconsin Redistricting Plan, Act 43, was an unconsti­tutional partisan gerrymander.²¹ Regarding standing, the Court held that the plaintiffs satisfied the standing requirement because they had suffered a particularized injury to their equal protection rights.²²

The United States Supreme Court reversed and remanded in an opinion joined by all of the justices, except Justices Thomas and Neil Gorsuch who would have dismissed the complaint without a remand for retrial.²³ In an opinion by Chief Justice John Roberts, the Supreme Court never addressed whether the efficiency gap was an appropriate standard for determining the constitutionality of partisan gerrymanders. Instead, Chief Justice Roberts concluded that the plaintiffs failed to prove standing because the only witness that testified about the impact of the gerrymander on his district, Professor William Whitford, acknowledged that Act 43 had not affected the weight of his vote. The “packing and cracking” that was characteristic of Act 43 had not affected the overwhelming Democratic majority in the district in which Professor Whitford resided. Accord­ingly, his testimony emphasized the statewide impact of Act 43 and his goal of achieving a Democratic majority in the Legislature.²⁴

Focusing on the requirements of standing, Chief Justice Roberts observed that to demonstrate standing a plaintiff must prove that he or she has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” (i.e., one that “affects the plaintiff in a personal and individual way).”²⁵ To satisfy that requirement, the chief justice noted that plaintiffs had claimed a constitutional right not to be placed in legisla­tive districts deliberately designed to “waste their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking).”²⁶ However, the Court noted that a plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “asserts only a generalized grievance against governmental conduct of which he or she does not approve.”²⁷ Because none of the plaintiffs testified that his or her district had been cracked or packed to their detriment, the Court held that the plaintiffs had not demonstrated an injury suffi­cient to satisfy the standing requirement. However, the Court did not dismiss the plaintiffs’ complaint, noting that the case

concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the Plaintiffs’ allegations that Donohue, Johnson, Mitchell and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.²⁸

Accordingly, the Court remanded the case to the district court to give the plaintiffs an opportu­nity to prove “concrete and particularized injuries” with evidence “that would tend to demonstrate a burden on their individual votes.”²⁹

As a result of the remand, there is a likelihood Gill v. Whitford will return to the Court and afford it another opportunity — but without Justice Kennedy — to deter­mine whether the efficiency gap provides a standard that can contribute to the Court’s ability to decide partisan gerrymandering claims on the merits. On that issue, Gill v. Whitford appears to be neutral, but there is scant cause for optimism.

Husted, Ohio Secretary of State v. A. Philip Randolph Institute, et al.

The Husted case concerns whether the procedures statutorily authorized and used by the state of Ohio to

identify and remove from the state’s voting lists voters who no longer reside in the district where they are regis­tered violates the failure to vote clause of the National Voters Registration Act (NVRA).³⁰ That clause provides:

(b) Confirmation of Voter Registration

Any State program or activity to protect the integrity of electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for federal office —

…

(2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.³¹

The failure to vote clause was supplemented by a provision added by the Help America Vote Act of 2002 (HAVA), which attempted to clarify the failure to vote clause by emphasizing that it does not categori­cally preclude the use of non-voting as part of a test for removal. Sec. 303(a)(4) A of HAVA provides, in part, that:

registrants who have not responded to a notice and who have not voted in 2 consecu­tive general elections for Federal office shall be removed from the official list of registered voters, except that no registrant may be removed solely by reason of a failure to vote.³²

By a 5-4 vote, the United States Supreme Court, reversing the Sixth Circuit, held that Ohio’s voter removal procedure did not violate federal law.³³ Justice Samuel Alito’s opinion for the Court was joined by Chief Justice Roberts and Justices Kennedy, Thomas and Gorsuch. Justice Stephen Breyer filed a dissenting opin­ion in which Justices Ruth Bader Ginsburg, Sonia Soto­mayor and Elena Kagan joined, and Justice Sotomayor also filed a dissent.³⁴

In concluding that Ohio’s procedure for removing voters from its rolls did not violate the NVRA, the Court upheld an Ohio process that relied almost—but not quite—exclusively on the failure to vote, a process that appears to eviscerate the clear purpose of the “Failure to Vote” clause.³⁵

The NVRA authorizes removal of a voter from the rolls only because of death or a change in the regis­trant’s address.³⁶ The NVRA further provides, in Section 20507(d)(1), that a state may not remove a registered voter’s name from the rolls on the ground that his or her residence has changed unless

either (A) the registrant provides written confirmation that he or she has moved or (B) the registrant fails to return a pre-addressed, post­age prepaid “return card” containing statutory prescribed content informing the registrant that, to stay on the rolls, the registrant either must return the card or vote during the period cover­ing the next two federal elections.³⁷

But there is a concealed trap for voters imbedded in the NVRA. It expressly requires that the registrar of voting must send a return card to a voter if the registrar received notice from the postal service that the regis­trant has moved to a new address outside of the voting registrar’s district.³⁸ But the NVRA does not prohibit the sending of a return card to a registered voter for other reasons. As Justice Alito explained, Ohio and four other states—Georgia, Oklahoma, Pennsylvania and Wisconsin—also authorize the sending of a return card to voters who have not voted for some period of time— pursuant to Ohio’s statute, for the past two years.³⁹

To recap, the NVRA specifically authorizes removal of voters from the rolls only because of death or a change in the registrant’s residence.⁴⁰ The act’s removal mechanism is triggered by a registrant’s confirmation that he or she has moved. It also may be triggered by a registrant’s failure to return a preaddressed, post­age prepaid return card, and failure to vote during the period covered by the next two federal elections follow­ing mailing of the return card.⁴¹ But in Ohio, return cards also are required to be sent to registrants who have failed to vote during the prior two years, a proce­dure Justice Breyer, in dissenting, criticized as a process under which “a person’s failure to vote is the sole basis on which the State identifies a registrant as a person whose address may have changed….”⁴²

Justice Alito’s majority opinion acknowledges that Ohio’s statutory determination that failure to vote for two years is indicative that a resident may have moved might have “overestimated the correlation between nonvoting and moving….”⁴³ The majority avoids that issue by emphasizing that “[w]e have no authority to… decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date.”⁴⁴

The majority bases its reversal on a literal reading of the language in HAVA that states that “no registrant may be removed solely by reason of a failure to vote.” (empha­sis added).⁴⁵ The majority points to the fact that Ohio’s procedure relies on both the failure to vote and the fail­ure to send back the return card as the basis for removal from the rolls, even though in Ohio the return card is sent out solely because of the registrant’s failure to vote for the prior two years. Therefore, under Ohio’s question­able process, a registrant’s failure to vote does double duty. Failure to vote for two years is used by Ohio as a proxy for concluding that a registrant may have moved, and under Ohio law triggers the mailing of a return card. Then, if the registrant fails to respond to the notice sent with the return card, and again fails to vote during the period covered by the next two federal elections, Ohio may remove the registrant from the rolls.⁴⁶

Dissenting, Justice Breyer noted that although 59 percent of Ohio’s registered voters failed to vote in 2014, on average only four percent of all Americans move outside their county each year. Nevertheless, in 2012 Ohio sent 1.5 million registered voters a return card and notice, on the assumption they might have moved. Justice Breyer observed that although about 235,000 registrants sent back return cards stating they had not moved, over one million registrants did not send back the return cards.⁴⁷

Regarding the statistics, Justice Breyer observed:

[ ] I think it is fair to assume (because of the human tendency not to send back cards received in the mail, confirmed strongly by the actual numbers in this record), the following: In respect to change of residence, the failure of more than 1 million Ohio voters to respond to forwardable notices (the vast majority of those sent) shows nothing at all that is statutorily significant.⁴⁸

Regrettably, the Court’s decision to uphold Ohio’s highly questionable voter removal process reveals no concern about the consequences for disenfranchised Ohio voters, the ultimate victims of the Court’s apparent disregard of the NVRA’s clear rejection of a state’s almost exclusive reliance on the failure to vote as the basis for disenfranchising registered voters.

Gary S. Stein is a retired associate justice of the New Jersey Supreme Court and counsel to Pashman Stein Walder Hayden in Hackensack, where he focuses on arbitrations, mediations and assisting other law firms in appellate matters.

Endnotes

1. 138 S. Ct. 1916 (2018).
2. Id. at 1934.
3. 138 S. Ct. 1833.
4. Id. at 1846, 1848.
5. 478 U.S. 109 (1986).
6. 478 U.S. at 132.
7. 541 U.S. 267 (2004).
8. Id. at 305-06.
9. Id. at 317-41, 343-55, 355-68.
10. Id. at 306-17.
11. Id. at 301-305.
12. 541 U.S. at 301-05.
13. 151 F. Supp. 3d 918 (W.D. Wisc. 2015).
14. Id. at 920-21.
15. Id. at 928.
16. Id. at 928-29.
17. Id. at 922.
18. Id.
19. Id. at 922-23.
20. Id. at 928-31.
21. Whitford v. Gill, 218 F. Supp. 3d 837, 903-12 (2016).
22. Id. at 837, 927-30.
23. Whitford, 138 S. Ct. at 1932, 1941.
24. Id. at 1932.
25. Id. at 1929.
26. Id. at 1929-30.
27. Id. at 1930 (quotingU.S. v. Hayes, 515 U.S. 737, 745 (1995)).
28. Id. at 1934.
29. Id.
30. Husted, 138 S. Ct. at 1838; 52 U.S.C. §§20501, et seq.
31. Husted,138 S. Ct. at 1861-62 (quoting 42 U.S.C. 1973, et seq.).
32. Husted, 138 S. Ct. at 1862 (quoting 52 U.S.C. 2103(a)(4)(A)), 1835, 1840.
33. Husted, 138 S. Ct. at 1848.
34. Id. at 1837.
35. Id. at 1842-43.
36. Id. at 1838 (quoting 52 U.S.C. 20507(a)(4)).
37. 52 U.S.C. 2057(d)(11).
38. 52 U.S.C. 2057(d)(2).
39. Husted, 138 S. Ct. at 1839 (citing Ohio Rev. Code Ann. §3503.21(B)(2); Ga. Code Ann. §21-2-234 (Supp. 2017); Okla. Admin. Code §230:15-11-19(a)(3) (2016); Pa. Stat. Ann., Tit. 25, §1901(b)(3) (Purdon 2007); Wis. Stat. Ann. §6.50 (1) (2017 West Cum. Supp.)).
40. 52 U.S.C. 20507(a)(3).
41. Gill, 138 S. Ct. at 1839.
42. Id. at 1840-41, 1853.
43. Id. at 1847.
44. Id. at 1848.
45. Id.at 1842-45.
46. Id. at 1845-46.
47. Id. at 1856.
48. Id. at 1856-57.