Gerrymandering, the process of drawing distorted legislative districts to undermine democracy, is as old as our republic itself. Just as ancient: the Supreme Court’s unwillingness to get involved and determine a standard for when a partisan gerrymander has gone too far.That might be changing. During the 2000s, Justice Anthony Kennedy expressed openness to a judicial remedy, if an evenhanded measure could be devised to identify when aggressive redistricting was no longer just politics as usual.
When the pivotal swing justice looks for a standard, law professors and redistricting nerds get to work. There are now several cases related to the extreme maps drawn after the 2010 census – by Republicans in Wisconsin and North Carolina, and by Democrats in Maryland – on a collision course with the Supreme Court.
The case with the most promise to deliver a lasting judicial remedy is Whitford v. Gill, from Wisconsin, which advances a fascinating standard called the “efficiency gap.” It is the brainchild of law professor Nicholas Stephanopoulos and political scientist Eric McGhee, but has an elegant simplicity that is easily understandable outside of academia. If gerrymandering is the dark art of wasting the other party’s votes – either by “packing” them into as few districts as possible, or “cracking” them into sizable minorities in many seats – the efficiency gap compares wasted votes that do not contribute to victory.
In November, a panel of federal judges smiled upon this standard and ruled that the state assembly districts drawn by a Republican legislature in the Whitford case represented an unconstitutional partisan gerrymander. “Although Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizable disparate” advantage held by Republicans under these new maps, wrote the court.
The judges ordered new state assembly maps in time for the 2018 election – a big deal, considering these district lines have helped give Republicans their largest legislative majorities in several decades, despite years in which Democratic candidates receive more votes. But just as important, it accepted the “efficiency gap” rationale and sent it toward Justice Kennedy. If Kennedy finds it workable, it would become much more difficult for politicians to choose their own voters and rig maps in their favor.
They were very aware of the kind of information [about the behind-the-scenes GOP redistricting chicanery] that was available in discovery. We knew we had a lot of smoking-gun evidence that would indicate partisan intent, and it turned out that we had even more than we thought. But by then we also had the results of the 2012 elections, where Democrats got a majority of the statewide vote but only 39 percent of the seats. By any measure for partisan effect, that was pretty good data.
[T]he efficiency gap measures the way that a party favored to win does so by wasting as few votes as possible – voters that can then be spread into other districts. The party that’s disfavored by the maps wins their seats by a substantial margin. Those voters are packed into that district. In a cracked district, there are a lot of wasted votes for the losing party – who might get 45 percent – but very few for the winning party. That’s how I explain it.
The efficiency gap nicely sums it up – there are many more Democratic seats that are won with 75-percent-plus of the votes than Republican seats. There are very few swing districts. The Democrats’ votes are packed, cracked and wasted. Then there are a bunch of Republican seats [where] they win around 55 or 60 percent – they win many more seats, much more efficiently.
All the data shows that gerrymandering is only getting worse, by both sides. It’s a problem, and a national one, of single-party control.
One can only hope that the Supreme Court embraces this analysis and sets the stage for redistricting across the country.Right now, Republicans are doing it more than Democrats. That’s because more states have single-party Republican control than [are controlled by] Democrats. But I’m not claiming Democrats are holier than thou. The courts can shake that up a bit, and they need to. But it’s only going to set some limits. It doesn’t mean it’s the end of partisan gerrymandering.