In recent Wisconsin elections Democrats won 53% of the votes but got only 39% of the seats in the legislature. How that was accomplished is the subject of recent oral arguments in the case of Gill v Whitworth. SCOTUS has always been more than reluctant to tinker with political gerrymandering. (If you live in Massachusetts, it’s pronounced garrymandering after the Massachusetts governor who gave the process its name in 1812 when he created a salamander-like district to benefit his party.)
Gerrymandering is the process of redistricting so that one party or group is favored over another. The 4th district in Illinois, for example, is drawn in such a way so as to bring together predominately Hispanic voters, thus giving them a representative and a voice. (Justice Stevens, bemoaning the practice, once said that gerrymandering permitted legislators to pick their voters rather than the other way around.) Gerrymandering for the purpose of achieving racial parity is perfectly legal under current jurisprudence. In a perfect world everyone would live in square districts and square states with the same number of people in each and perfectly balanced politically. Not gonna happen. (For really nice descriptions of the different kinds of gerrymandering and how it’s accomplished, see the sources below.)
It was the Vieth case that led us to the current situation. In Davis v Bandemer in 1986, the court had ruled that partisan gerrymandering could be unconstitutional, but had struggled with finding a standard. They could not. In Vieth, they again decided not to decide, Scalia proposing that it was an unsolvable problem and therefore the court should not even try. Justice Kennedy, however, ever the middle-of-the-roader, wrote a narrow decision suggesting that some kind of standard might be within reach.
Enter some social scientists (derided by Roberts in oral arguments as providing “gobbledygook” – I don’t know if he has measured legal gobbledygook against social science gobbledygook.) They have developed something called the efficiency gap. It measures the ratio of wasted votes to determine whether the redistricting was done with partisan intent or not. The court may now have to rule on whether districts need to be fairly balanced from a partisan standpoint.
Whether we really want the courts to be deciding districts remains to be seen, but the principle of one-man-one-vote and not wasting votes is an important one. It would seem the only way out of the mess might be some move toward proportional representation, or, better yet, a trend away from political party adherence and more independents.
Sources:
1. https://phys.org/news/2017-10-gerrymandering-fair-districts-strange-symmetrical.html
2. https://dustingmixon.wordpress.com/2017/10/11/an-impossibility-theorem-for-gerrymandering/
3. https://www.brennancenter.org/sites/default/files/legal-work/How_the_Efficiency_Gap_Standard_Works.pdf
4. http://www.scotusblog.com/case-files/cases/gill-v-whitford/
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