Just How Much Gerrymandering Is Unconstitutional? Wisconsin Plaintiffs Want the Supreme Court to Rule.

Advocacy groups and plaintiffs pushing a Wisconsin lawsuit, as well as political scientists around the country, hope to establish a standard for just how much politicians should be allowed to gerrymander political maps.

Arizona Independent Redistricting Commission attorney Mary O'Grady, left, speaks with Stephen Miller, a Casa Grande city council member, as they point to a possible map outlining the new congressional landscape during a 2011 meeting in Tempe.
AP Photo/Ross D. Franklin
Jack Fitzpatrick
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Jack Fitzpatrick
Nov. 4, 2015, 8 p.m.

Every dec­ade, when state le­gis­latures across the coun­try draw dis­tricts for them­selves and their con­gres­sion­al del­eg­a­tions, some law­makers vi­ol­ate voters’ con­sti­tu­tion­al rights by pack­ing mem­bers of the minor­ity party in­to as few dis­tricts as pos­sible.

At least, that’s what the Su­preme Court has hin­ted at in past rul­ings, when it wrote that ex­treme par­tis­an ger­ry­man­der­ing can vi­ol­ate voters’ First and Four­teenth Amend­ment rights to free­dom of speech and due pro­cess. The prob­lem, the Court wrote in its 2006 League of United Lat­in Amer­ic­an Cit­izens v. Perry de­cision, is that it can’t strike down ger­ry­mandered maps without some sort of tool to de­term­ine ex­actly when dis­trict bound­ar­ies are skewed so drastic­ally that they dis­crim­in­ate based on voters’ party af­fil­i­ations. The wind­ing, snake-like dis­tricts of­ten used to il­lus­trate ger­ry­man­der­ing aren’t ne­ces­sar­ily signs of ill in­tent, and it’s of­ten ne­ces­sary to have some vari­ation in how po­lar­ized or com­pet­it­ive dis­tricts are.

But the Wis­con­sin-based plaintiffs in a law­suit filed this sum­mer think that they have found the for­mula that the Court has been wait­ing for. And if they man­age to push their case to the high court and win, the law­suit’s con­sequences could ex­tend from Wis­con­sin across the en­tire na­tion.

In a new U.S. Dis­trict Court case, Whit­ford v. Nich­ol, the plaintiffs pro­pose judging ger­ry­man­der­ing via a concept called the “ef­fi­ciency gap,” based on an aca­dem­ic pa­per writ­ten in 2014 by polit­ic­al sci­ent­ists Nich­olas Stephan­o­poulos and Eric McGhee.

The pro­pos­al is sur­pris­ingly simple for such an ar­cane sub­ject: Start by adding up each party’s “wasted” votes that don’t help them win a dis­trict. (If Party A wins 90 votes out of 100, 39 of its votes are wasted, since it only needs 51 for a ma­jor­ity. All 10 of Party B’s votes are also wasted in this scen­ario.) The dif­fer­ence between each party’s wasted votes, di­vided by the total num­ber of votes cast, is the “ef­fi­ciency gap.”

Across the Wis­con­sin State As­sembly, Stephan­o­poulos and McGhee found a 13-per­cent ef­fi­ciency gap in 2012 and 10-per­cent gap in 2014, both fa­vor­ing Re­pub­lic­ans. That trans­lates to Re­pub­lic­ans win­ning 13 per­cent more seats in 2012 and 10 per­cent more in 2014 than they would have un­der a map that treated mem­bers of both parties equally.

In Whit­ford, the plaintiffs use the ef­fi­ciency gap to il­lus­trate how steeply dis­ad­vant­aged Demo­crats are in the state. But be­cause Whit­ford is the first time that any plaintiffs have pro­posed this kind of test to meas­ure the ex­tremity of ger­ry­man­der­ing, the law­suit’s re­per­cus­sions could ex­tend far bey­ond Wis­con­sin.

“A sweep­ing, na­tion­wide Su­preme Court vic­tory is sort of the dream scen­ario,” said Stephan­o­poulos, who is also one of the law­yers work­ing for the plaintiffs.

He ad­ded that he would also wel­come a de­cision that only strikes down Wis­con­sin’s As­sembly map, which would cre­ate a guideline for fu­ture law­suits else­where. But Stephan­o­poulos ex­pects the de­fend­ants to ap­peal to the Su­preme Court if they lose.

If the Court rules in the plaintiffs’ fa­vor, it could es­tab­lish the ef­fi­ciency gap test as an of­fi­cial meas­ure for ger­ry­man­der­ing in all states. But in ad­di­tion to hav­ing a meas­ure­ment for how ex­treme ger­ry­man­der­ing is in any giv­en state, the Court would have to ac­tu­ally define how big an ef­fi­ciency gap would have to be in or­der to be un­con­sti­tu­tion­al.

Stephan­o­poulos’s and McGhee’s re­com­mend­a­tion: 8 per­cent as the threshold for state­houses, and whatever per­cent­age adds up to at least two seats for con­gres­sion­al maps.

By that meas­ure, Flor­ida, Ohio, Pennsylvania, and Vir­gin­ia all have con­gres­sion­al maps that vi­ol­ate voters’ con­sti­tu­tion­al rights. At the state level, this meas­ure would in­val­id­ate polit­ic­al bound­ar­ies in Idaho, In­di­ana, Kan­sas, Mas­sachu­setts, Michigan, Mis­souri, North Car­o­lina, Ohio, Ok­lahoma, Rhode Is­land, Vir­gin­ia, Wis­con­sin, and Wyom­ing.

These states won’t all ne­ces­sar­ily have to draw new maps if Wis­con­sin’s As­sembly map is ruled un­con­sti­tu­tion­al, though. The plaintiffs base their ar­gu­ment against Wis­con­sin’s map heav­ily—though not solely—on the ef­fi­ciency gap meas­ure­ment. Stephan­o­poulos said it’s pos­sible a court will rule against Wis­con­sin’s maps without ap­prov­ing of this par­tic­u­lar meas­ure­ment or choos­ing a dif­fer­ent per­cent­age as the line in the sand against ger­ry­man­der­ing.

The ef­fi­ciency-gap stand­ard has already come un­der cri­ti­cism. Its re­li­ance on elec­tion res­ults means that the stand­ard could be thrown by un­con­tested races or the nat­ur­al ad­vant­age that in­cum­bents build up the longer they hold a seat, said Wis­con­sin As­sist­ant At­tor­ney Gen­er­al Bri­an Keen­an, who is de­fend­ing his state’s map. And if a “wasted” vote is a sign of dis­crim­in­a­tion, that would make nearly every vote for a third-party can­did­ate a sign of ger­ry­man­der­ing, Keen­an ad­ded.

Des­pite the Su­preme Court’s hints that ex­treme ger­ry­man­der­ing could be un­con­sti­tu­tion­al, Keen­an said it’s an in­her­ent char­ac­ter­ist­ic of hav­ing dis­tricts—rather than pro­por­tion­al rep­res­ent­a­tion—that the rep­res­ent­a­tion in le­gis­latures isn’t equal to over­all pop­u­lar votes. Demo­crats now tend to live in more densely pop­u­lated, urb­an areas, mak­ing it more nat­ur­al to en­circle a large num­ber of them in a single dis­trict. The con­gres­sion­al dis­trict centered on Mil­wau­kee, for ex­ample, is a deep-blue dis­trict where Rep. Gwen Moore has won at least 69 per­cent of the vote in every elec­tion since she first ran in 2004.

“Dis­trict­ing it­self isn’t un­con­sti­tu­tion­al,” Keen­an said. “By dis­trict­ing, you just group people, and what you’re sup­posed to do is look at com­munit­ies of in­terest and group­ing like people to­geth­er. And if you do that prop­erly and it ends up with cer­tain groups not be­ing able to con­vert seats as well, that’s just kind of the breaks, it seems like. It’s not a con­sti­tu­tion­al prob­lem.”

If the ef­fi­ciency-gap meas­ure­ment is flawed, ger­ry­man­der­ing op­pon­ents have a backup plan. Com­mon Cause, the polit­ic­al ad­vocacy non­profit, launched a com­pet­i­tion this year for polit­ic­al sci­ent­ists to sub­mit their own ger­ry­mander stand­ards.

Ac­cord­ing to SUNY Bing­hamton pro­fess­or Mi­chael D. Mc­Don­ald, who sub­mit­ted the win­ning pro­pos­al along with as­sist­ant pro­fess­or Robin Best, the com­pet­i­tion’s goal was not ne­ces­sar­ily to in­sert the stand­ard in­to a law­suit aim­ing for the Su­preme Court. The stand­ards could be ac­cep­ted by in­de­pend­ent state re­dis­trict­ing com­mis­sions or a state like Flor­ida, where par­tis­an ger­ry­man­der­ing was out­lawed by con­sti­tu­tion­al amend­ment—but nev­er ac­tu­ally defined.

Mc­Don­ald and Best pro­posed com­par­ing a party’s statewide vote with its per­cent­age in the me­di­an dis­trict. Il­leg­al ger­ry­man­der­ing will have oc­curred, by their stand­ard, when a party con­sist­ently wins a ma­jor­ity of the statewide vote but loses the me­di­an dis­trict.

Once a court, com­mis­sion, or le­gis­lature in some state ac­cepts a ger­ry­man­der­ing stand­ard, it will have sig­ni­fic­ant long-term ripple ef­fects, Mc­Don­ald be­lieves.

“Vir­tu­ally every state, once they’re told that’s the stand­ard, they play by those rules,” Mc­Don­ald said.

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