We see it after every election. Maps that depict the results by county show the United States as a sea of red interrupted by islands of deep blue. Given that we elect Congress and state legislatures in single-member, winner-take-all geographic districts, this concentration of Democratic votes gives Republicans a natural advantage in legislative races.
In the face of this natural handicap, Democrats have turned to the courts. Last year, in a case called Gill v. Whitford, a divided three-judge panel sitting in Madison held that the Wisconsin legislature had unconstitutionally drawn state assembly districts to benefit Republicans.
The case did not present districts as a traditional gerrymander. None are bizarrely shaped and the court conceded that the state had complied with traditional redistricting principles. And even though the court acknowledged that the concentration of Democratic voters could be expected to give Republicans a natural advantage, it concluded that the percentage of seats won by Republican candidates in 2012 and 2014 departed "too much" from the percentage of all votes in 99 separate assembly races for Republican candidates.
Wisconsin appealed, and the United States Supreme Court heard arguments in the case last week. The very nature of representative government may hang in the balance.
Over the past 30 years, a majority of the Supreme Court has acknowledged that drawing districts to benefit the voters of one party might violate either the First Amendment or Equal Protection clause of the Constitution. But the court has been unable to agree upon any neutral standard to determine when an apparent partisan advantage has gone too far. Despite decades of litigation, lawsuits alleging partisan gerrymanders have almost always failed.
Indeed, a number of justices concluded that the time had come to give up and admit that such claims cannot be evaluated without making political, as opposed to legal, judgments.
The plaintiffs in Gill claim to have found the neutral standard that has eluded the courts for so long. The fancy name chosen for this new standard is "the efficiency gap." Democratic votes were "inefficiently" distributed among Wisconsin's assembly districts so that many were "wasted" in strongly Democratic districts. Of course, "packing" the opposition's votes is a well-known form of gerrymandering. But simply to note that the voters of one party are more heavily concentrated than voters of the other does not tell us whether, or to what extent, it is the product of where voters live as opposed to partisan knavery.
The lower court in Gill nevertheless thought Wisconsin's maps were unfair because it was possible to draw maps that might lead to more "proportional" results. This gives away the game. Because the efficiency gap treats "wasted" votes as a presumptive constitutional problem that must be explained away or remedied, it is, in the end, a requirement of some form of rough proportionality between the aggregate votes for the candidates of one party and the number of seats won by that party's candidates. It is the absence of that proportionality that turns out to be the "inefficiency" that must be remedied.
But Democratic and Republican voters are not uniformly distributed throughout a state's geography and it is unlikely that the results of numerous individual elections will match statewide preferences. Although it claimed otherwise, there is no way around the fact that the lower court majority chose to impose a constitutional obligation to, in effect, gerrymander for "competitiveness" and to compensate for the natural disadvantage imposed by the geographic concentration of Democrats.
There's the irony. In seeking to combat partisanship, the district court – I'm sure, unwittingly – enlisted in a partisan project. Redistricting involves the balancing of multiple factors (contiguity, compactness, continuity, community of interest, respect for political subdivisions) that often work against each other and make it difficult to define what "normal" districts ought to look like. In straining to decide how much partisanship is "too much," courts inevitably plunge themselves into our political wars.
The Supreme Court should make clear that there is no constitutional mandate for electoral "efficiency" or proportionality of results. Courts have no business fine-tuning partisan "fairness." At least in the absence of departure from traditional redistricting principles, the best course of action for the courts is no action at all.
Rick Esenberg (@RickEsenberg) is president and general counsel of the Wisconsin Institute for Law & Liberty.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.