The United States Supreme Court this past week announced that they would take up the case of Whitford vs. Gill out of Wisconsin which involves partisan gerrymandering of legislative districts.  Although the case involves state level legislative districts, the impact on federal districts is also on the line.

As one is aware, districts are adjusted every ten years after the census to determine the population of each state.  Currently, state legislatures are tasked with redistricting in 37 of 43 states (7 states have only one US Representative).  In the other six, four states- California, Washington, Idaho and Arizona- an independent commission is used.  In New Jersey and Hawaii, a political commission decides the districts.  Some states allow the Governor to veto any proposed map.  In short, states are generally left with the job of redistricting.

While the courts and the Supreme Court have been generally against racial gerrymandering efforts that dilute the votes of minorities, in the case of partisan gerrymandering, the Supreme Court has tread softly.  The most recent case came in 2004 out of Pennsylvania.  It was a 5-4 plurality decision that struck down Pennsylvania’s state level map given the specifics of that case.  In the many opinions in that case, the consensus was that there was no objective judicial standard to judge partisan gerrymandering.  Only Anthony Kennedy left open the possibility that such gerrymandering may violate the Constitution, but was perplexed by the mechanism to prove it.

Gerrymandering has been the big electoral bogeyman of the Left for years.  While turning a blind eye towards districts designed to make sure members of minority groups are elected, they turn their ire on partisan gerrymandering.  It has been blamed on everything from political polarization, Congressional gridlock and the fact Democrats do not consistently command a majority in the House for infinity.  They blame it on their terrible record in state legislatures over the past eight years.

Yet, they go silent when they themselves are the ones doing it.  Before California went to an independent commission, their 23rd Congressional District was notorious for partisan gerrymandering.  Lest anyone believe that independent commissions are the cure-all, they created the bizarre-shaped state level senate districts in southern California that have created cries of “gerrymander.”

Most of the impetus for gerrymander reform comes not from grassroots movement, but from academic theorists and liberal organizations.  In the 1960’s, the grandfathers of these people told us that mathematically equal districts would end discrimination, under-funding, and promote moderate state legislatures.  Dissenters like Felix Frankfurter argued the opposite- it would proliferate the use of partisan gerrymandering.  They argued that the suburbs would be the real winners.

But, the liberals plunged forward undeterred.  Unable to win state legislatures or have independent commissions created, they resorted to the courts.  Their anguish is caused by the fact that Republicans, being more respectful of local and state government, took advantage of the new possibilities.  The independent commission movement came about with minimal success.  In fact, many of these independent commissions are reliant on the very political scientists within the movement.

Unfortunately, the lines that Democrats which to draw to get back at the GOP will diminish the representation of local interests.  Their zeal for the Voting Rights Act will diminish the representation of blacks to the advantage of Hispanics and Asians.

The newest rage in this area among political scientists is the notion of “wasted votes.”  This is defined as all the votes cast for the losing candidate in a race PLUS the votes for the winner over the minimum threshold to be elected.  For example, there are 300,000 votes cast.  The winner needs 150,001 votes to win.  They receive 200,000 votes and the loser 100,000.  That is a total of 149,999 “wasted votes.”  You then take that number and divide it by the total votes (300,000) to come up with an efficiency rating.  In this case, it is near 50%.  That would indicate, according to their formulations, no gerrymander.

Using this formula and applying it to what is considered by most to be the most gerrymandered district in the United States- the North Carolina 12th- we find a deviation of 39%.  This is way off from the theorized 50%.

But in the Wisconsin case before the Supreme Court, the argument at the lower court level was a little different.  Here the argument was that Republicans received 48% of the vote statewide, but captured over 60% of the legislative districts.  Hence, the cries of a partisan gerrymander.

The GOP’s defense in Wisconsin is something that complicates the entire picture and is a political fact.  Although Democrats may have captured the majority of votes in statewide races, but not electoral victories to win the legislature, the majority of Democratic voters are clustered in Madison and Milwaukee.  Thus, the Democrats have their representation from a small segment of Wisconsin’s real estate.  The efficiency gap model does not take into account the natural sorting of the population of a state.  For example, what about districts where someone runs unopposed?  What about districts in California where one Democrat opposes another Democrat?  What about the influence of third party candidates?

No one accuses Minnesota of partisan gerrymandering.  In fact, the efficiency rating of each district averages 49.9997%.  But when taken to the state level, the numbers change.  In 2016, Democratic candidates captured 77.8% of the votes.  However, they won 5 of 8 seats, or 62.5% of the available seats.  According to the efficiency rating model, they should have 6 seats or 75% of the available seats.  This creates a 12.5% discrepancy and thus, under the model, gerrymandering.  One can see that this is not the criteria the Court should adopt!

Further, using these statistical models is full of difficulty.  Statistics can be interpreted to mean anything to the interpreter.  Second, it fails to take into the account the electability of individual candidates.  Suppose in our hypothetical non-gerrymandered district earlier that the loser in the campaign was really bad- a corrupt, cursing, coarse politician who turned everyone off and got only 30,000.  That “wasted vote” total efficiency rating suddenly shifts that non-gerrymandered district into a gerrymandered one under this statistical model.

Bolstering Wisconsin’s case somewhat is the fact that the lower court used the efficiency gap model as only one of several reasons to reach the conclusion they did.  Also, under the lower court’s order, Wisconsin had to come up with a new plan by the November, 2017 elections.  They asked for and received a stay on that order in a 5-4 decision from the Court.  The liberal wing was in the minority.

Obviously, Kennedy is the important vote here.  In the 2004 case, he envisioned a situation could arise where partisan gerrymandering could possibly be considered unconstitutional.  He determined the standard for reaching that conclusion was elusive.  The statistical models of academics sitting before computer printouts of voting results keeps that task elusive.

The Court left themselves an out if need be and added a question to be argued: whether political gerrymandering cases were even justiciable in the first place, meaning do the courts have any business involving themselves in what is recognized as a political process?  That may be the most important question in this entire case.