According with gerrymandering is the burden “a

According to the District Court’s proposed test, a court must find discriminatory intent, a large discriminatory effect, and a lack of any valid justification in order to invalidate a plan. Direct or circumstantial evidence on the motives of the mapmakers and those who passed it into a law can be proven through evidence. Next, election results and measures of partisan symmetry like partisan bias and the efficiency gap can establish a discriminatory effect. A. Addressing the constitutional harms inflicted by partisan gerrymanderingIn the past, the Court has viewed partisan gerrymandering “as causing equal protection injury of intentional vote dilution” (brief, 34). The precedent set by Davis v. Bandemer held that unconstitutional discrimination occurs when a district plan “degrades a voter’s or a group of voters’ influences on the political process as a whole” (Bandemer). Wisconsin’s Act 43 was drawn to promote Republican influence and maintain this influence under any possible voting scenario. One of the constitutional problems with gerrymandering is the burden “a given partisan classification imposes on representational rights” (Vieth, Kennedy). Other justices in Vieth have characterized gerrymandering as “intentional vote dilution” (Vieth) as well, which makes it difficult for the targeted voters to elect their preferred candidate. Vote dilution, as recognized by the Court, is unjust because it does not representatively respond to voters’ needs and interests. Although, past precedent outlines that the elected official will consider the views of the other major party, the map created in Wisconsin intentionally meant to silence the Democratic voters and the elected officials voted in would be unresponsive to their needs. The test’s effect prong centers around partisan asymmetry of the map outlined by the Wisconsin legislature. Partisan asymmetry measures vote dilution. The partisan asymmetry indicates that certain voters in Wisconsin are less able to convert their ballots into representation, making it difficult for these voters to elect their chosen candidate. The targeted party’s voters’ political philosophy prevents them from being able to influence the political process.B. Partisan symmetry is a “comprehensive and neutral principle” JUSTICE KENNEDY’s concurrence in Vieth v. Jubelirer states that the Court lacks “comprehensive and neutral principles for drawing electoral boundaries” (Vieth, Kennedy), however, the Whitford test is partly based on the concept of partisan symmetry which is a “comprehensive and neutral principle” for designing and evaluating plans. In LULAC, the Court was presented with the social science principle that district maps should treat parties symmetrically, “enabling them to translate their popular support into legislative representation with approximately equal ease” (brief, 37). The Court has not rejected the partisan symmetry standard “and future plaintiffs are free to try to convince the Court that it is an appropriate standard” (GM in America, 53) as a majority of the justices have responded positively towards the idea. The Whitford test incorporates a measure of asymmetry into its effect prong, which is the efficiency gap. Partisan symmetry is comprehensive if it can be applied to any district map. The Brief of Respondents states that the expert for the appellees “did compute partisan symmetry for almost every state house map from 1972 onward” (brief, 38) in Wisconsin. It is also neutral because by definition, partisan symmetry is the symmetric treatment of voters’ votes no matter what party they favor. Thus, if a plan is symmetric plan, it is neutral and offers each party’s supporters equal opportunity to convert ballots into representation. The appellants argue that partisan symmetry is related to proportional representation, but the Court has rejected this in both Bandemer and Vieth. The accepted definition of proportional representation is the “share of legislative seats that is equal to a party’s share of the jurisdiction-wide vote” (brief, 39). The district court found that the efficiency gap does not require “that each party receive a share of seats in proportion to its vote share” (brief, 40). The efficiency gap is a tool that compares the wasted votes of each party; it does not determine whether a party’s percentage of statewide votes is reflected in the number of representatives elected by that party. The efficiency gap provides analysis that captures how deviated a plan is from the historical norm and provides guidance to courts and mapmakers to analyze “how much partisan bias is too much” (gerrymandering in america, 54) on state maps. JUSTICE KENNEDY’s skepticism on the symmetry standard is because it does not provide a reliable measure of unconstitutional partisanship, however, the efficiency gap provides a useful social scientific tool in assessing this standard as it applies to state plans.C. All three prongs of the test are rooted in the Court’s partisan gerrymandering case law. The principles of the First and Fourteenth Amendments are reflected in the intent prong: “plaintiffs are required to prove…intentional discrimination against an identifiable political group” (Bandemer, plurality). Under this prong, political classifications are not inherently problematic, however, they become so when they are “applied in an invidious manner” (Vieth, Kennedy). Therefore, the intent prong can be administered, but the plaintiffs responsible for proving the intent behind the way a particular map is drawn. The test’s second prong’s requirement of a large discriminatory effect refers to the Court’s decision that “more than a de minimis effect” (Bandemer, plurality) is necessary before the mapmakers are held liable, meaning that a minimal effect of discrimination is not sufficient enough to hold mapmakers liable. Lastly, the test’s justification prong responds to the Court’s “remarks that maps should not be struck down” if partisan “imbalances can be explained by neutral factors” (brief, 43). If a jurisdiction is able to justify the discriminatory effect of a plan by referencing factors other than pure partisan advantage,  judicial intervention is not necessary.