In less than a month, the U.S. Supreme Court will hear Gill v. Whitford, a politically charged gerrymandering case, and rule on whether Wisconsin’s State Assembly map was intentionally drawn to favor one party over another. Called “the most important” case of the term by Justice Ruth Bader Ginsburg, the court’s decision could be a death knell to partisan redistricting, transforming the way political districts have historically been drawn.
Even the most casual observer of the case is bound to stumble upon various methods of measuring gerrymandering, including the one used in this case — the widely cited “efficiency gap.”
In the lower court trial, the efficiency gap held great sway, as its wasted votes aided the plaintiffs’ case by ranking districting plans and flagging those plans that had likely been gerrymandered.
But it does not take long to realize that gerrymandering allegations have nothing to do with the efficiency gap, or its wasted votes. They have to do with seats and votes.
In Wisconsin’s 2012 state assembly elections, Democrats received 50 percent of the statewide vote but only 40 percent of the legislative seats. Republicans fist-bumped and were congratulated for ekeing out a victory. Democrats’ shoulders slumped as they claimed the system was gamed, all because the numbers favored Republicans.
Since 2012, experts have been brought in, historical data has been mined, and Wisconsin has been rated on the gerrymandering scale, all to prove what the people of the state already knew: There was a disparity in the seats-votes percentages.
If the Wisconsin election had turned out even, where the percentages matched, no hands would have waved, no accusations would have been made, no analysts would have been called up, and no lawsuit would have been filed, no matter how the districts were drawn. Gerrymandering lawsuits are all about seats and votes, and this presents a problem when preparing a case.
The problem is, an argument based on seats-votes percentages is not allowed in the courtroom, because it implies that proportional representation is a constitutional right. In reality, this just isn’t so. Lawyers are left to find other methods to prove gerrymandering, and this is where the “efficiency gap” comes in.
Skirting the proportional representation argument, the efficiency gap frames elections in terms of an imbalance of wasted votes instead of an imbalance of seats and votes. Via these wasted votes, the efficiency gap became the glue that held the plaintiffs’ case together throughout the Whitford v. Gill trial in the lower court. It was referenced in the court’s opinion over 250 times, and since the decision, it has been written about in nearly every major newspaper and online news source in the country.
The efficiency gap has not only won over judges and editors, but scientists too. Over the past few years, analyst after analyst has used “wasted votes” to measure gerrymandering in every state in the union, in this century and the last. The constant drumbeat of wasted votes has been the perfect marriage of science and politics.
Only in the past few weeks has it been shown that the efficiency gap is not quite what it appears. The unfortunate fact is, it can be calculated by using only seats and votes. That makes it merely another argument based on proportional representation, and thus something that will not likely be allowed back inside a courtroom, including the well-known one just a block east of the Capitol Building. This lays the Whitford v. Gill case bare, and it suddenly looks all too similar to the Veith v. Jubelirer gerrymandering case that was struck down by the Supreme Court in 2004.
Of course, the 2004 case did not have modern-day analytics. But will the court just assume that the new methods are a game-changer? Are the justices expected to believe that political scientists have merely failed to notice the efficiency gap for all these years?
The authors of the efficiency gap are not to blame. They were truly trying to find an answer to the gerrymandering issue. Their method was one in a sea of measurement techniques. But as the efficiency gap climbed the ranks and was used by scientist after scientist, barely any criticism of the method made it into the scientific literature.
How, with honest faces, will these same scientists convince the justices that some new method suddenly has the real answer? If a method had merit, wouldn’t we have heard of it by now? Wouldn’t it be front and center, here, today?
And how can the justices assume these new methods are not about seats and votes? What else is there? Every statewide measurement technique is highly correlated to a seats and votes measurement, so what is the difference?
The outcome of this case could have reverberations for decades and one hopes that these newer methods, fine-tuned only recently, will be pushed down the road. Those presenting the case to the lower courts were deficient in their research and are now scrambling to catch up. Perhaps we should insist that the Whitford lawyers come better prepared to what has been called a landmark case.
Few would argue that reform of redistricting is not needed. In ultra-partisan 2017, Democrats and Republicans are reaching across the aisle to solve this problem. Reform will be realized, but it will be by people who represent our states, the way it should be. We do not need the courts to do what we can do in our own backyards.
Ray J. Wallin is the author of The Equal Districts Efficiency Gap: Fundamental Gerrymandering Theory and an Analysis and Modification of the Efficiency Gap.
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