In advance of the midterm elections scheduled for November 6, 2018, many states are preparing for, or have already completed, their primary elections. 

Meanwhile, voters and state officials in Wisconsin and Maryland have been waiting for the United States Supreme Court to determine whether they must redraw their voting districts because of alleged partisan gerrymandering.  On June 18, 2018, the Supreme Court issued opinions determining that those states, at least for now, don't need to change their voting maps. 

While the law concerning racial gerrymandering is fairly well-established, the law concerning partisan gerrymandering remains unsettled.  The Court has struggled over the years to determine whether, and at what point, partisan gerrymandering becomes unconstitutional.  The Court recognizes that partisanship may play a role in drawing voting districts, but that at some point such partisanship may hinder voting rights in an unconstitutional manner.  Having not yet defined this fine line, the Court also has not developed a definitive test to determine when partisan gerrymandering becomes unconstitutional. 

The Efficiency Gap Test

Many hoped the Court would adopt the "efficiency gap test" to determine when partisan gerrymandering becomes unconstitutional.  This test measures the percent of votes "wasted" in an election, i.e., the percentage of votes cast in a district where a voter's party is almost always, or never, going to win.  Proponents claim the efficiency gap test can determine if partisan gerrymandering has led to the intentional "packing" or "cracking" of voting districts.

A "packed district" is one so full of voters from one party that the voters of that party are prevented from being in other districts where they can make elections competitive on a partisan basis. 

For example, one of the voters in the Wisconsin case lives in a district where more than 80% of voters are registered with that voter's party.  Because a candidate needs only 51% of the vote to win, many votes of that voter's party are "wasted."  The candidate of the voter's party likely will receive far more votes than are needed to win. 

A "cracked district" is one that, if it formed a single district, would be competitive, but instead is broken up between or among multiple districts so that only a small number of voters of a particular party are in each district.  Because outnumbered voters of that party will almost never elect a candidate of their party in their cracked district, their votes are likewise "wasted."

By measuring the number of wasted votes, the efficiency gap test seeks to determine whether districts were drawn with the goal of being competitive or with the intent to advantage one party over another.  In theory, districts with a high-efficiency gap are more likely to be gerrymandered on partisan grounds in an unconstitutional manner, and a district with a low-efficiency gap would be more competitive, meaning candidates from each party theoretically would have a chance of winning.

There is a pressing need for a test to determine when partisan gerrymandering becomes unconstitutional.  Improvements in technology make it easier to predict voting behavior and therefore draw voting districts that favor one political party over another.  Unfortunately, the Court, in both the Wisconsin and Maryland cases, declined to reach the question of constitutionality or to adopt a definitive test to meet this urgent need.

The Wisconsin Opinion

Wisconsin voters attempted to bring voter dilution claims on behalf of the entire state of Wisconsin but the Court determined that the voters lacked legal standing to bring statewide claims. 

The Court decided that the voters could only bring claims on behalf of their own voting districts, and that they suffered no injury from voter dilution that occurred in other districts.  The Court also held that voters could not represent other voting districts based upon their interest in a legislature generally composed of candidates from a particular party. 

The Court noted that if partisan gerrymandering is found to be unconstitutional, it may nevertheless not require that an entire state's voting map be redrawn.  Therefore, claims need to be pursued by voters in the same districts where alleged gerrymandering and voter dilution took place.

Justice Kagan's concurring opinion in the Wisconsin case provides additional insight on how voters in future cases challenging partisan gerrymandering could possibly overcome the standing issue.  Her opinion suggests that voters may have standing to challenge statewide, partisan gerrymandering if they focus on the infringement of their First Amendment right to association. 

The Maryland Opinion

The Court's opinion in the Maryland case likewise failed to establish a concrete standard to determine whether unconstitutional partisan gerrymandering has occurred.  In the Maryland case, voters sought an injunction that would have required a particular voting district to be redrawn. 

The lower court denied the injunction because the plaintiffs waited too long to bring their case.  Specifically, the voters moved for their injunction in May 2017, six years after the challenged district had been drawn.  At that point, the voting map had already been used in three elections. 

The Court affirmed the decision of the lower court, and also determined that it could not realistically provide relief to voters before the upcoming election without potentially damaging the public interest in an orderly election. 

What Does This Mean for North Carolina Voters?

In January 2018, a three-judge federal panel found that North Carolina's voting maps were unconstitutional because of partisan gerrymandering.  The judges in the North Carolina case had a somewhat easier task than the judges in the lower courts in the Wisconsin and Maryland cases.  Specifically, a North Carolina state legislator instrumental in drawing the challenged map admitted that the map was intentionally drawn to favor his party.  

The North Carolina case has been appealed to the Supreme Court, and if the case is heard, the Court likely will determine if the North Carolina voters have standing to challenge the state's entire voting map.  Unlike the Wisconsin case, the North Carolina case includes plaintiff voters from all of the state's congressional districts, meaning the Court may be more likely to find standing for a statewide challenge.