To understand the political tactics that cause deep partisanship, invest the time to read this. It's worth your while.
On Oct. 3, the United States Supreme Court heard Gil vs. Whitford, a Wisconsin case regarding extreme partisan gerrymandering of the Wisconsin Legislature.
In that case, Republicans drew a legislative plan that gave their party 60 percent of the seats even though the party won only 49 percent of the vote. The legislature used a combination of “cracking,” “packing” and other tricks to minimize the Democratic districts and maximize Republican advantage. Democrats used some of these same techniques when they controlled state legislatures.
Most Supreme Court observers concluded that almost all the justices expressed concern about the extent of partisan gerrymandering, but there is a real split over whether the courts can develop a test of gerrymandering that will allow legislatures and courts to enforce fairness in future cases.
To understand the case and the issues that confront citizens of all states, we need to understand more about the “cracking” and “packing” of legislative districts, and other tricks state leaders can use to manipulate votes. We should also understand the objective analyses of such districts recommended to the Supreme Court in the case.
Assume that there is a state — or county or other local government — with 100 voters, of which 60 are Republicans and 40 are Democrats Assume that those who draw the map must create four districts of equal population. So, there will be four districts of 25 voters each. Republicans tend to vote together as a block, as do Democrats. This is no shock to San Antonians who have seen so many election result maps with a sea of red (Republican) in North San Antonio and a sea of blue (Democrat) in West, South and East San Antonio.
One can easily see that Republicans have the majority of the votes, but that there are certainly enough Democratic voters for Democrats to have a majority in one or even two of the four districts.
Depending on the redistricting plan, Republicans could have control of all four districts or as few as one. Let us look at plans that could create such a wide range of results.
Plan 1 — Republicans cracking Democrat areas
If Republicans are in control, they can draw four reliable districts of 15 Republicans and 10 Democrats each. The Republicans have “cracked” the 40 Democrats into four sections of 10 votes each and given Democrats little chance to elect a Democrat. Republicans would have 60 percent of the vote and get 100 percent of the seats.
Plan 2 — Republicans packing and cracking Democrat areas
Possibly, because of fear of legal repercussions or based on a sense of fairness, the Republicans can also give the Democrats one district without losing control. They could “pack” the Democrats into one district of 25 Democrats and no Republicans and then crack the remaining 15 Democrats into three districts with five Democrats and 20 Republicans in each district. This will guarantee three Republican districts and one Democrat district and each member will be elected from a district that is almost all one party. Republicans would have 60 percent of the vote and get 75 percent of the seats.
Plan 3 — Democrats packing Republican areas
If Democrats have control of the redistricting even with a minority of the votes, they can “pack” Republicans into two districts and have complete control of the other two districts. Democrats could draw two districts of 20 Democrats and five Republicans and two districts of 25 Republicans and zero Democrats. Democrats with 40 percent of the vote would get 50 percent of the districts.
Plan 4 — Democrats packing and cracking Republican areas
In this plan, Democrats can really push their luck and draw three districts of 13 Democrats and 12 Republicans and one district of one Democrat and 24 Republicans. This would be the most gerrymandered of all the plans that a party could draw. Democrats would have 40 percent of the votes and 75 percent of the seats.
Plan 5 — Republicans could create more competitive districts.
Assume a map drawer wants to give Democrats a district, but not to pack the Democrats or the Republicans more than necessary. Republicans could do this by drawing two districts of 15 Republicans and 10 Democrats, one district of 10 Republicans and 15 Democrats, and one district of 20 Republicans and 5 Democrats. Republicans would have 60 percent of the votes and 75 percent of the seats.
The parties to the Wisconsin case — and we in the general public — know some of the effects of packing, cracking and tricks in redistricting. Party primaries in packed districts tend to elect candidates at the extremes of their party. Some people see this as electing a candidate representing the real philosophical base of the party. Others see this as electing fringe candidates.
Cracking and packing tend to reduce turnout because members of the losing party do not see any chance of success. Even members of the winning party do not participate as actively because the results are so predictable. The people in these communities are suffering from the dilution of their votes and the power of their voices in the public arena. The negative effect on turnout is even greater with the effects of voter ID requirements, restrictive voter registration procedures, limited voting hours, and playing games with areas of high voter turnout and low voter turnout to maximize one party’s wins and minimize the other party’s wins.
The litigants brought these basic problems to the Supreme Court in the Wisconsin case. Democrats are recommending a measure to determine the degree of the gerrymandering in a certain redistricting plan. The test, called the efficiency gap test, looks at election results in each district and counts all the losing votes as “wasted” votes. In a fair election system, the parties will waste about the same proportion of their votes. Those fair systems will pass the test. However, real gerrymandered districts will certainly fail that test.
Let’s analyze the five plans above using this test.
Plan 1 wastes all of the Democrat votes and a very limited proportion of Republican votes. Plan 1 would clearly fail the efficiency gap test.
Plan 4 wastes very few Democratic votes and a great majority of the Republican votes and would fail the test.
Plan 2, Plan 3 and Plan 5 pass the test. These plans give each party about the proportion of the seats that they constitute in the general population.
The developers of the efficiency gap test applied the test to the congressional redistricting plans of all 50 states. The analysis found that Democrats gerrymandered Republicans in Maryland. Republicans gerrymandered Democrats in Texas, Alabama, Georgia, South Carolina, North Carolina, Virginia, New York, Pennsylvania, Ohio, Indiana, Michigan and Wisconsin.
Republicans actually won Congress when they won the majorities in state legislatures in 2010. Those legislatures then gerrymandered the congressional districts after the 2010 census results were reported in Spring 2011. This explains how, after the 2012 plans went into effect, Democrats won the majority of votes in congressional races as a whole, but won only a powerless minority of the congressional seats.
So how have map drawers gotten so proficient at gerrymandering?
From the days of large paper maps, hand drawn districts and hand calculators, new technology and software allow district drawers to draw with the stroke of a stylus and immediately get information on numbers, race, national origin, incomes, home value and unlimited social and economic data for each district.
To maximize their own party’s power, legislators and their experts draw districts down to the individual voting precinct and block. One really dirty trick is to move your opponent’s best voting areas out of your party’s districts and pack them into the opponent’s districts where those voters are not needed.
Most important — and problematic — is that the district drawers can tell how each proposed district voted in every election for the last 10 years. This leads to extremely accurate predictions of how any district will vote in future elections. If a party in power wants to squeeze more winning districts out of a certain population they can do that with uncanny accuracy.
The negative effect on our democracy is too great. With our new computing power must come new rules and legal standards to ensure these redistricting tools do not destroy the equal rights of our voters and the fairness of our government.
The Supreme Court should hold the Wisconsin districting unconstitutional and adopt one of the offered tests as a first step in deciding the constitutionality of redistricting plans in the future. The Supreme Court has often had to develop a standard based on both objective criteria and the equitable powers of courts to prevent manifest unfairness.
The Supreme Court can and should do that in this case.
If the Supreme Court does not declare the Wisconsin plan unconstitutional, the 2020 redistricting will be the most gerrymandered in our history.
We no longer have the Voting Rights Act preclearance requirements to maintain some fairness and there will be open season for partisan gerrymandering.
Al Kauffman is a law professor at St. Mary’s University School of Law. He was a civil rights lawyer for 25 years and teaches constitutional law, education law and procedure.