Killing the Gerrymander: A Season of Hope

Update: Hello again to the Crooks & Liars audience coming here via Mike's Blog Round-Up! Thank you as always to Batocchio for inviting onto the list, and again to everyone here please visit, I have other rants and rampages to read at this blog.


For all my ranting on the sidelines about getting rid of the gerrymander, there is someone else out there - Hi, Paul! - doing the heavy lifting, and GOD BLESS HIM FOR IT.

Via Slate.com:

Both Democrats and Republicans deploy partisan gerrymandering to dilute votes for their opponents, creating one-party rule and, arguably, greater polarization. That’s bad for the body politic and a clear contravention of the Constitution. But as long as the courts refuse to step in, gerrymandering will continue to plague the country...

Now Paul Smith, one of the greatest legal minds in the country, is asking the Supreme Court to finally put a stop to it. And here’s the exciting part: He might actually succeed...

KEEL IT! KEEL THE GERRYMANDER!!!

Ahem.

...The difficulty in curbing partisan gerrymandering has not been in convincing judges that the practice is unconstitutional—the Supreme Court has found that it is—it’s convincing judges that they can fix it.

In 2004’s Vieth v. Jubelirer, which Smith argued, five justices agreed that partisan gerrymandering likely violated the Constitution. But one of these justices, Anthony Kennedy, wasn’t sure quite how to fix the problem, and so he voted with the conservative justices to toss out a challenge to a Pennsylvania gerrymander - without closing the door to future lawsuits. In a concurring opinion, Kennedy wrote that partisan gerrymandering seems to unconstitutionally “burden representational rights” by “penalizing citizens” because of their “association with a political party” or their “expression of political views.” Still, Kennedy insisted, courts should not intervene until they could articulate “principles of fairness in districting” - specifically, a formula to decide when the burden placed on representational rights crosses the line into unconstitutionality. Otherwise, he argued, the results from one gerrymandering case to the next would likely be disparate and inconsistent...

So Smith and his people figured out a formula:

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...

So based on this efficiency gap formula, the Wisconsin gerrymanders at 13 percent goes well beyond the historical skewing, and can well violate the "one person one vote" axiom that judicial review relies on.

As the article noted, the district court already sided with Smith and the Efficiency Gap. There is demonstrated evidence of gerrymandering affecting the voters' ability to choose their representatives, and given the legal arguments against gerrymandering there's a solid chance that the Supreme Court - even this conservative one - would accept the evidence and rule in Smith's favor.

Getting this formula set to reconfigure electoral districting at a state and federal level would go a long way towards ensuring a more accurate representation of the voters across the nation. It would certainly force the political parties to be more responsive to the voters and less towards the mapmakers.

Here's hoping Paul Smith gets the Supreme Court to agree with him.

Here's hoping the gerrymander dies a quick death before 2018 (or at least 2020).