Posted by Drew Penrose on December 16, 2016
Two days before Thanksgiving 2016, election law and policy nerds everywhere collectively were shocked and amazed – albeit in their fairly reserved way – at the discovery of the holy grail of election law: A three-judge panel struck down partisan gerrymandering as unconstitutional in a challenge to Wisconsin’s state legislative redistricting plan.
Calling this the “holy grail” of election law is no exaggeration. In fact, one of the three judges used that very term. After a history of considering partisan gerrymandering an off-limits political question, the Supreme Court tantalizingly hinted that partisan gerrymandering might be unconstitutional in a 2004 decision called Vieth v. Jubelirer. In that decision, four justices stated that the Court should stay out of partisan gerrymandering claims; four justices wanted the Court to get involved right away; and one – Justice Kennedy – stated that partisan gerrymandering does raise constitutional issues, but he felt that no one had made a good enough argument for how to distinguish partisan gerrymandering from ordinary districting. Since that time, attorneys have attempted a variety of creative approaches for identifying when gerrymandering goes too far, and all have failed. Common Cause has creatively even run two cycles of a contest to identify a gerrymandering standard – complete with cash prizes!
That the decision came from a three-judge panel makes it that much more exciting. Three-judge panels are unusual: they can only be used in a limited set of circumstances. Unlike normal cases that would have to work their way through layers of appeals before reaching the Supreme Court, decisions of three-judge panels appeal directly to the Supreme Court. The Court will almost certainly take this case soon.
As a result, court-watchers and media sources are anxiously trying to guess how the Court might come out in the case, and what it could mean for politics going forward. The Court very well may side with the plaintiffs. Even after incoming President Trump appoints the successor to the late Justice Scalia, the Court’s balance will be the same as it was in Vieth. The reality is that if the Court sides with the plaintiffs and strikes down partisan gerrymandering, it will be important – but it will not be as world-changing as some are claiming.
Partisan gerrymandering is when the people responsible for drawing legislative districts for a state draw those districts in such a way as to give one political party an unfair advantage. Most democratic nations make this impossible by using a proportional system - often based on voting for parties, but also possible via candidate-based systems like ranked choice voting in multi-winner elections. Those that do rely on legislative districts use a non-partisan approach of some sort to make gerrymandering less likely. However, in the United States, partisan gerrymandering occurs regularly and right out in the open.
States like Texas and North Carolina have admitted to partisan gerrymandering in court. In Maryland, state senator (and newly-elected Member of Congress) Jamie Raskin stated that Maryland had intentionally gerrymandered the state in favor of Democrats to offset Republican gerrymandering in states like North Carolina, Ohio, and elsewhere. Even when principled lawmakers like Raskin see the practice as obviously illegitimate, they feel like they have no choice in the current partisan battle.
Fundamentally, all districting is gerrymandering. The moment a set of district lines goes into law, those district lines determine who can and cannot win election. Some districts will encircle areas in which most people prefer Democrats, while others will include mostly Republican voters. Such districts will not have competitive general elections. The number of districts that lean toward Democrats and the number that lean toward Republicans will not necessarily be even or reflective of the state’s overall preferences, because people do not live in a way that is evenly distributed. When line-drawers gerrymander a state, they are taking these tendencies and intentionally guiding them to a particular result.
Take away intentional partisan gerrymandering, for example by going to a non-partisan districting method, and all of this will still be true. Most districts will not suddenly become competitive, nor will overall results suddenly become fair. Rather, the lack of competition and unfairness of the district maps would depend on “natural” factors, like where people choose to live and what criteria the non-partisan approach follows. Most of the problems people blame on partisan gerrymandering are inherent in the use of single-winner districts.
Nonetheless, partisan gerrymandering has a particularly noxious reputation. It reeks of corruption. The single-winner district method makes district lines the most important factor in who will win representation and by how much, and partisan gerrymandering puts control over those lines into the worst hands possible – those who directly benefit from manipulating them. The maps themselves can sometimes look ridiculous, making for good media.
As a result, it can be too easy to claim that eliminating partisan gerrymandering will have a greater impact than it really would. In reality, to have a truly representative Congress, elected in meaningfully contested elections, in which voters truly choose their Members and not the other way around, we must end the single-winner district system itself. FairVote proposes a federal law – no constitutional amendment required – that would do just that for congressional elections. The Fair Representation Act would allow people to have local representatives, and fair results statewide and nationally, by combining ranked choice voting with multi-winner districts.
In fact, the ongoing lawsuit could help push the U.S. in that direction, although it would take a new argument.
How the Wisconsin Lawsuit Can Help
The standard that the three-judge panel adopted to strike partisan gerrymandering targets the tactics that gerrymanderers use to manipulate outcomes. If a group of voters in a state – like Democrats in Wisconsin – have enough numbers to elect several legislators, their power can be diminished by packing many of them into a small number of districts. Then, the remainder of them can be spread out and made into a minority of the remaining districts by cracking their population centers. In that way, a large number of votes can elect a small number of seats, making those votes inefficient. At the same time, the favored party can be put into as many districts as possible such that they have enough to guarantee the favored outcome, but no more. That makes their votes very efficient. The combination of those tactics creates an efficiency gap between the two groups of voters, a measurement of just how advantageous a given plan is for one party.
The heart of the standard adopted by the court uses this concept against gerrymandering. Measure the efficiency gap. If it is very big, then the state may be so gerrymandered as to be unconstitutional.
There’s only one problem: large efficiency gaps can occur without any intentional partisan gerrymandering, just based on where people live. As a result, the case outlines two other requirements. First, the state must have intended to create this gap when it drew the districts. Second, it cannot be the case that any reasonable district map would have created a similar efficiency gap.
Wisconsin easily meets all three of these requirements. The Wisconsin state house plan was drawn in secret by Republican leadership, and then passed by the Assembly without any meaningful debate. The efficiency gap in the Wisconsin state house is greater than that of 96% of state house plans in the country dating back to 1972, making the plan incredibly advantageous for Republicans. The plaintiffs were able to provide the court with a new plan, including equally compact districts, that virtually eliminates any efficiency gap between the parties.
If the Supreme Court agrees with the three-judge panel, then cases like this could easily be filed in many other states. As mentioned earlier, intentional partisan gerrymandering is common, and it has been done out in the open. Reducing the efficiency gap would likely lead directly to fairer outcomes for Democrats in states like Texas, North Carolina, and Pennsylvania, and to fairer outcomes for Republicans in states like Maryland and Illinois.
However, there are some states where outcomes are remarkably unfair, but where this case would not be able to change things. For example, California’s districts unfairly favor Democrats, but because the state’s districts were drawn by a non-partisan process, it could not be accused of partisan gerrymandering. Similarly, Michigan’s districts unfairly favor Republicans, but it is likely that any reasonably compact district map would, because Michigan voters are unevenly distributed. Democratic voters in Michigan are far too concentrated in the Detroit area for a compact district map to distribute them efficiently among their fair share of districts.
Why should this partisan unfairness – which may be a constitutional violation – be allowed in these contexts? The only justification is that it must be, because the violation is not from intentional gerrymandering, but from the choice to use single-winner districts. However, single-winner districts are not required by the Constitution. As mentioned earlier, partisan unfairness can be even better addressed by combining a fair voting method like ranked choice voting with multi-winner districts.
If a single-winner district map cannot resolve a constitutional violation, then courts should be empowered to use fair voting methods with multi-winner districts instead. The use of fair voting methods has helped resolve over 100 cases brought under the Voting Rights Act in similar circumstances involving vote dilution of racial minorities. They could also offset unfairness with additional “accountability seats,” with a method we call “Districts Plus.” In the long term, the Fair Representation Act (or something very close to it) will need to be adopted to truly end gerrymandering of all kinds. In the meantime, we should empower our courts to consider the benefits of fair voting when considering how to resolve partisan gerrymandering cases like this one.
Image Source: The Gerry-mander, Wikimedia Commons; United States House of Representatives, Maryland District 3 Map, Wikimedia Commons; Creating a Gerrymander, A Possible District Plan, Campaign Legal Center.