Gerrymandering opponents in Wisconsin believe they have come up with a fix to America’s highly polarized political system, end or limit gerrymandering. Towards that end a group of plaintiffs in a Wisconsin based gerrymandering case, Whitford vs. Nichol, are seeking to establish a new national standard in limiting gerrymandering.
The idea is simple, if ridiculous. 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 fairly simple to understand. Start by adding each party’s “wasted votes” that did not help them win a district. For example, if Party A wins a district with 90 out of a 100 votes than 39 of its votes were wasted as only 51 were needed to win. All 10 of the Party B’s votes were also wasted. Taken together you subtract the number of wasted votes by party and divide them by the number of total votes cast, and viola, you have the “efficiency gap.”
Stephanopoulos and Eric McGhee’ survey focused primarily on Wisconsin and found double digit efficiency gaps in the legislature in 2012 and 2014 benefiting Republicans. So, if the formula was used to equal party representation, Republicans did 10 percent better and 13 percent better in 2014 than they should have.
Except this measure is absolutely ridiculous on its face. If the measure in its most equal form became a rule (whether by law or judicial ruling) it would mean a district where the vote is 51-49 would be unequal. Admittedly, such a ruling in this scenario is unlikely but the possibility exists.
The dream scenario for the plaintiffs would be to see the case move all the way up to the Supreme Court. The Supreme Court has hinted in the past that some gerrymandering does go to far. 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. It is fairly obvious when a district is gerrymandering racially (see Florida, Virginia, North Carolina) but less so when those districts are that way to comply with federal Voting Rights laws and partisan affiliation.
The Wisconsin lawsuit aims to give courts a tool to do so. Except that such a precedent would be brand spanking new. For decades gerrymandering has been the norm and nobody batted an eyelash. It is only now, when Congress is polarized, that such a panacea is brought to court.
While noble the idea has demonstrable flaws. First-off, what constitutes to much of an efficiency gap is not being proposed by the plaintiffs. In essence, the plaintiffs are daring the court to accept McGhee’s and Stephanopoulos’s recommendation of 8 percent.
This measure would invalidate Florida’s, Ohio’s, Pennsylvani’sa, and Virginia’s 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.
Notice anything interesting about the state legislatures however. Only four of states are marginally competitive for one party at the federal level. That means that through the natural ebb and flow of politics these states are one-sided. Mandating that districts be more competitive won’t change this. Rather, all it would do is give Republicans more seats in the legislature in Massachusetts and Democrats more in Idaho and Wyoming.
Wisconsin Assistant Attorney General Brian Keenan, who is defending his state’s map, sees many of the “efficiency gaps” in legislative districts as the product of having a district based system. Through no political interference, Democratic voters have moved to urban, governmentcentric suburbs and cities while Republicans have largely remained in the suburbs and rural areas of states.
“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.”
Keenan is of course right. Trying to make a seat where a majority of Republicans live meet some sort of competitive standard (not just population or shape) is foolish. It punishes these voters for living together and in many scenarios would likely just create new schisms in politics.
Imagine the divide in legislative districts stretching from Milwaukee to the extremely conservative suburbs. You would basically encapsulate two ideologies in a single district. And while it might lead to a competitive district it would not change the highly polarized nature of the electorate nor would it lead to more moderate policies. At some point these legislators would be forced between which voters to appeal to and base their votes on that appeal in an effort to get votes.
The plaintiffs are not the only ones offering ideas on how to limit gerrymandering. Common Cause, a nonprofit group trying to limit polarization launched a competition on ideas to limit gerrymandering. SUNY Binghamton professor Michael D. McDonald along with Assistant Professor Robin Best presented the winning proposal. 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.
There are flaws with this idea as well. If turnout varies significantly by district that could impact results (and that has nothing to do with gerrymandering). Secondly, it discounts the roles candidates play in elections. For example, using a statewide race to compare to the median vote in a legislative district discounts the quality of the candidate and the connections a challenger or incumbent has built in that district. The legislative results last week in Virginia’s senate elections where every Republican occupying an Obama district exemplifies such a trend (polarization still does not always overcome candidate qualities).
Still, if any of these ideas gain steam, or heaven forbid the Supreme Court dictate it must be done, every state would have to comply. However, with four justices finding Arizona’s Redistricting Commission unconstitutional that is unlikely to come to pass.
Rather, the results of the Wisconsin lawsuit and work of many professors and analysts across the country will be utilized individually by various states. But even so, that will not change the polarizing nature of electoral system (district and geographically based electoral systems are designed to pit groups together in a healthy give and take) which is probably where the real issue lies.