Last month, the Supreme Court heard arguments in Gill v. Whitford, which concerns gerrymandering in Wisconsin. Gill is the latest of many instances in which progressives have taken to the courts to advance their electoral cause when they couldn’t win at the polls. The plaintiffs in the case advanced a novel theory, the “efficiency gap,” which purports to varnish their old arguments with a fresh coat of mathematical certainty, replacing politics with math, whether the people agree or not.
One problem with elevating recently invented theories to the level of constitutional law is that they are found nowhere in the Constitution. But even if you are willing to overlook that important detail, there is also the lack of evidence that the “efficiency gap” theory is true. It works for the Gill plaintiffs because they think it would achieve the result they want: more Democratic state legislators. But, as the 2017 House of Delegates elections in Virginia have recently shown us, the theory has serious flaws.
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There are many factors that go into the construction of legislative districts, some of which are necessarily at odds with one another. Since the 1840s, Congressional districts have in general been single-member and geographically contiguous. The same typically applies at the state level. There are also more general principles that are not codified in law, but that some people think should apply. These include compactness and a reluctance to divide “communities of interest” (areas that people expect to be together). State legislators also, traditionally, try not to lump two incumbent representatives into the same district, and often try to preserve the geographical distribution of seats.
These considerations give legislators plenty to think about when drawing districts, even without the short- and long-term political concerns that can never me far from their minds. More recently, they have also had to contend with court-imposed strictures that make the task even more complicated. Good-government reformers have leapt from one new requirement to the next in an attempt to remove the politics from the inherently political process of redistricting — and the courts have helped them along the way.
The Supreme Court has gotten involved in gerrymandering cases before Gill. In Baker v. Carr (1962), the Court overturned the precedent that redistricting decisions were political questions beyond the purview of the judiciary. Two years later in Wesberry v. Sanders and Reynolds v. Sims, the Court invented the “one man, one vote” rule, which held that districts must be “as nearly of equal population as is practicable.” In the 1993 case of Shaw v. Reno, the Court held that gerrymandering based on race was subject to strict scrutiny by the judiciary, as “racial classifications of any sort pose the risk of lasting harm to our society.” At the same time, it held that the majority-minority districts required by the Voting Rights Act were not necessarily violations of the Constitution.
These cases added necessarily vague restrictions on what state legislatures may do in drawing district lines. The Court recognized that exact equality of population is sometimes a mathematical impossibility, but declined to specify how much variance was acceptable. And it held that race-based redistricting was allowed, but only sometimes and only for a good reason, guaranteeing that it would get pulled into every redistricting dispute, since one party will always dispute that the other’s reasons are valid.
Perhaps this is why in Vieth v. Jubelirer in 2004, the Court demanded a better standard before adding yet another judicially imposed requirement to the process of redistricting. In that case, as in Gill, the plaintiffs were Democrats who had come out on the losing side of a fight over redistricting. They called the result political gerrymandering, claimed it was unconstitutional, and demanded that the courts overturn the new maps.
In Vieth, a 5–4 decision written by Justice Sandra Day O’Connor held that the issue of political gerrymandering was not justiciable. But in a concurring opinion that gave hope to the losing side, Justice Anthony Kennedy wrote that, while there was as of yet no manageable standard for courts to apply to political gerrymandering cases, there might be such a standard someday and, if it were discovered, he would consider applying it. “I would not,” he wrote, “foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
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In Gill, the plaintiffs believe they have found the sought-after “limited and precise rationale.” Their standard, developed from a 2015 article by Nicholas Stephanopoulos and Eric McGhee, compares a political party’s statewide vote in all legislative races to the percentage of seats won. It defines the efficiency gap as the difference between the parties’ respective “wasted votes,” divided by the total number of votes cast in the election. The bigger the gap is, supposedly, the stronger the evidence that the redistricting process was partisan. “It captures,” according to the authors, “in a single tidy number, all of the packing and cracking decisions that go into a district plan.”
Wisconsin Republicans won 49 percent of the statewide legislative vote in 2012 while taking 60 percent of the seats in the State House. The exact way they did so resulted in an efficiency gap of 15 percent, according to the Stephanopoulos–McGhee formula, which the plaintiffs in Gill attributed directly to the district lines the Republican majority had drawn. By their logic, the way that Democrats were concentrated in some districts and dispersed in others meant that the election was unfair, and that the Supreme Court must step in.
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There is an enormous flaw that becomes immediately obvious in examining these results: The formula produces a number based on the statewide legislative vote, something that no voter considered when voting and no candidate considered when running. Like the popular vote for president, statewide vote totals for non-statewide offices are an interesting curiosity, but they have no legal effect. Republicans in Wisconsin were not trying to win the statewide vote any more than Donald Trump and Hillary Clinton were trying to win the nationwide popular vote.
Instead, like every other candidate for office, Wisconsin State Assembly nominees were trying to win their own elections and to do so as efficiently as possible. In districts they judged to be non-competitive, the parties often did not run any candidate. This makes sense: Why recruit a candidate and spend scarce campaign dollars when the most likely result would be increasing your party’s vote from 0 to 20 or 30 percent?
Curt, I was against gerrymandering when Democrats were in power and stacking the deck. Unlike the general mindset your blog sells, it’s equally wrong now that Rs are doing it.
It’s a proven mathematical fact that Ds had the votes in many heavily R states yet lost seats due to gerrymandering. Joseph Stalin said “It’s not the people who vote that count, it’s the people who count the votes.” That’s a disturbing belief to have here in the USA regardless of the party you favor.
But for an environment that has openly admitted that they’d vote Hitler or Stalin or Mao or Lucifer over a Dem, and then defending on a daily basis the exploding the deficit, of being a child molester, a sexual assaulter, blatant disregard of the Constitution, promoter of violence, serial liar, golf course residing, and on and on—so long as you’re just not a Democrat, I do get it that the reality of my argument is irrelevant here.
Democrats continue to whine about excuses for why they lost instead of facing the facts: they, more and more, run liberals that no one wants. They don’t understand that even though their core is getting more and more leftist and socialist, that trend is not reflected across the nation.
We got an 8 year preview of what liberalism is and what it does to a country. We saw how badly the small but powerful core of the Democrat party wants socialism and what they are willing to do to get it. We saw how the left is willing to destroy anything, stoop to any level, employ any underhanded, despicable tactic to achieve their goals (goals which, again, the majority DOES NOT WANT). It was not a pretty sight.
The majority is beginning to see through the corrupt liberal media, so the effect of propaganda is losing strength. True, the left has discovered the tactic of the last-minute accusation of sexual harassment and the counterweapon to being unable to disprove something that is accused to have happened 20 or 30 years ago has not been resolved, but it will be.
All this effort due to overlooking the obvious: create popular policies and run agreeable candidates and you will be competitive again. But, these are difficult to find among socialists.
Wisconsin has gone through some of the nastiest politics since the Republicans took majority, John Doe, recall, this is just another grasping at straws as they continue to lose power and their long standing tax and waste policies are swept away.
Ever see Luis Gutierrez’s district?
How about Sheila Jackass Lee?
@DrJohn: Well, be fair now. It’s always someone else’s fault.