This term the Supreme Court is going to hear a very important case involving partisan gerrymandering that, for the first time, has a real chance of getting the court to intervene in redistricting cases involving partisan, rather than racial, gerrymandering.
A little background. The court has long held that gerrymandering that is undertaken to reduce the ability of racial minorities to influence election outcomes is unconstitutional, but not so if the goal was merely to gain a partisan advantage (and we’ll leave aside the difficult distinction between those two things for now). But in 2004, there was a case that went 5-4 against judicial intervention that opened the door to future intervention to prevent such gerrymandering.
In that case, Justice Kennedy sided with the other four conservatives in refusing to force districts to be withdrawn, but wrote a concurring opinion in which he said that while he agreed that partisan gerrymandering likely violated the Constitution, the court should not intervene unless they could articulate a clear standard by which to determine whether it had taken place or not. If such a standard existed and could be applied consistently, he said, then the court could do something about it. The current pending case provides a rather ingenious solution to that problem:
Smith and the CLC believe they have found the right standard in the work of two scholars, Nicholas O. Stephanopoulos and Eric M. McGhee. This formula—called the “efficiency gap”—cites two types of “wasted votes” in the redistricting process: “lost votes” cast in favor of a defeated candidate, and “surplus votes” cast in favor of a winning candidate that weren’t actually necessary for the candidate’s victory. The efficiency gap is, in Stephanopoulos’ words, “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.”
When both Democrats and Republican waste roughly the same number of votes, the efficiency gap is near zero. That means voters on both sides had a fair shot at securing their desired representation. When a party gerrymanders its opponents into the minority, however, it will “waste” fewer votes than its opponents, causing the efficiency gap to rise. A historical analysis of elections across from the country since 1972 suggests that an efficiency gap of 7 percent will entrench the majority party’s power until new maps are drawn. Wisconsin’s Republican-drawn gerrymander has an efficiency gap of 13 percent, meaning a huge number of Wisconsinites are currently deprived of their representational rights solely because they are Democrats.
This formula may sound like an oddly technical method for ensuring basic representational equality. But the justices have waded into algebraic waters before. The court has long held that the Constitution enshrines the principle of “one person, one vote,” meaning districts should contain about the same number of people so that no vote counts more or less than others. But over several decades, it has had to decide what amount of deviation from the “one person, one vote” principle was constitutionally permissible. Ultimately, the court found that the deviation between the population of the largest and smallest districts in a state cannot exceed 10 percent.
This is quite brilliant and seems to satisfy Kennedy’s requirement for judicial intervention. Even if Neil Gorsuch is on the court by the time this case is heard, if Kennedy agrees then there should be five votes to declare partisan gerrymandering both unconstitutional and judicially actionable. And given the extraordinary success the Republicans have had since 2010 in rigging the maps to ensure political dominance in the House and in state legislatures, that would be a huge game-changer. It would likely kick off lawsuits all over the country to force the maps to be redrawn fairly before the 2020 election.