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That title is not a popular way to start a piece on the Supreme Court or gerrymandering. But, despite the torrent of outrage flowing through the press and cyberworld, I’m taking a contrarian view and suggesting that the Court got it right.
The Wisconsin redistricting case, Gill v. Whitford, hinged on the utility of a new measure of partisan fairness called the “efficiency gap.” It was created by Nicholas Stephanopoulos and Eric McGhee as a way to measure and compare the number of “wasted votes” cast for each political party in state legislative or congressional elections. The efficiency gap has many merits. It is simple, easy to explain and understand and easily applied to election results. It also does not get to the heart of the problem of gerrymandering.
The Court pointed out that the efficiency gap is an aggregate measure. It fails, therefore, to take into account the conditions in particular legislative districts. In some cases, votes may be wasted because voters are indeed “packed” into districts where they comprise an overwhelming majority. In others, they may be cracked among several districts so that they can never elect a candidate of their choice. Both of these practices were employed at the expense of minority voters during one of its darker periods of racial discrimination.
But, partisan votes are different. In some cases, it may appear that votes are wasted because an incumbent is so popular that she scares off any partisan opposition. Alternatively, it may be the case that a party organization is so decrepit that it cannot field a viable opposition candidate. In some cases, it is simply not possible to draw a competitive district where votes are not wasted. In Virginia, for example, it is almost impossible to draw a majority-minority district that comports with the Voting Rights Act and that is competitive. Simply put, there is little to be gained in running a Republican candidate in a district that is designed to ensure that a minority candidate (who is also most likely to be a Democrat) is elected. As a result, the notion of “wasted votes” really is not helpful in the analysis of gerrymandering because one person’s wasted vote is another’s endorsement of a popular candidate.
Furthermore, the efficiency gap tells us little about the motivations that inform those who draw district lines. A legislative district map that meets all notions of aesthetics can have the same efficiency gap measure as a map that looks like a Rorschach test. Simply aggregating votes across a state does not tell us whether and how the organization of the electorate contributes to or against an unfair electoral system.
In the end, the Supreme Court has told lawyers and academics to do their homework better. Statewide measures of vote counts are simplistic and ignore important details about how voters vote. We are not a bunch of ciphers that enter the polls on Election Day and automatically pull the Democratic or Republican lever. We think about who the candidates are and how candidates that bear the same party label can differ radically in their positions on the issues. Accordingly, a vote may be in favor of one candidate or against another. It is therefore nonsensical to compare partisan votes cast in one legislative district to those cast in another.
In challenging lawyers and political scientists to undertake much more extensive analysis of how voters vote in our electoral system, the Court also invited them to prove that gerrymandering punishes voters because of their “association” (through casting a vote) with one party or the other. But, in our electoral system where we divided voters among districts in which they can choose among a limited slate of candidates, this will be an impossible task. One’s “association” with a party will depend on who the party’s candidate is—and vice versa. So long as we continue to use the antiquated single-member district system of elections, it will be impossible to tell whether a partisan vote is for or against a party or a candidate because we force voters to choose artificially between limited Election Day options.
If we really want to stop—or at least curtail—gerrymandering, we should use the Court’s decision to enact meaningful electoral reform. A switch to ranked choice voting (as Maine used in its recent election) will give voters much more meaningful choices on Election Day and handcuff those who would look to gerrymander the electoral system. The Court has invited Americans to improve the electoral choices. Will we accept and put an end to gerrymandering?
I wrote this for my Huffington Post site here.
In short, I believe we have reached the point where it is clear that our current system of elections is arguably unconstitutional. It would take a tremendous effort to take a successful constitutional challenge to the Supreme Court. But, the Court itself has planted the seeds for such a challenge throughout its case law.