Do Democratic voters have a right to elect a certain number of Democrats to their state legislature? Earlier this week, the Supreme Court heard a critical case that revolves around that question.
Naturally, the plaintiffs would never admit that that’s the heart of the matter, but the case really stems from Democrats’ frustration at having lost power in so many states since 2010. They were happy with the system of partisan redistricting until they lost control over the process. Now it’s a constitutional emergency — a civil rights issue, even.
This case, Gill v. Whitford, made its way to Capitol Hill after a split three-judge panel decided that Wisconsin’s state legislative map, drawn in 2011 by Republicans, was unconstitutionally political. Which is to say, the map didn’t get enough Democrats elected.
But the reasoning is as full of holes as a Swiss cheese. Judge William Griesbach dissented from the lower court ruling, pointed out first that Wisconsin’s map is not even a true gerrymander. Unlike previous maps that have been challenged as too partisan (such as Pennsylvania’s congressional map last decade and Indiana’s legislative map three decades ago), the maps in this Wisconsin case don’t rely on bizarre shapes. Nor do they butcher communities of interest. Nor do they contain districts with widely varying numbers of inhabitants. The Republican map mostly just exploits the fact that Democrats tend to live in clusters that can easily be drawn up into nice, compact districts with lopsided Democratic majorities leaving the rest of state to vote Republican.
This is where the ballyhooed idea of an “efficiency gap” comes in. The lower court’s majority allowed the argument that this map can be challenged because it results in Democrats “wasting” too many votes, or winning fewer seats per vote than they could in a system of proportional representation.
Democrats claim they are aiming for a fairer system, but that’s not true. What they really want is a court-imposed rule that says no map is fair unless they like the outcome. Court-imposed rules trample on powers that the Constitution reserves for state legislatures. As Chief Justice John Roberts put it during oral arguments, “The whole point is you’re taking these issues away from democracy and you’re throwing them into the courts.”
It actually gets worse than that if the Supreme Court accepts the “efficiency gap” and “wasted votes” as valid tests of constitutionality. It would subvert the prerogative of elected state legislatures. In addition, it would abandon the founders’ vision of representative democracy.
The Founding Fathers did not even anticipate that parties would spring up as they did. So, parties simply did not rise to a level worth noticing in the construction of our republic. In the system created and which still pertains, voters select individual candidates to represent them, who could be very different from each other, or even hold opposite views, despite coming from the same party.
In contrast, the flawed concept of the “efficiency gap” comingles every vote for every Democratic candidate in a state, and every vote for every Republican candidate, as if they were all interchangeable. Constitutionally, they are not interchangeable. It is a fallacy to infer, as the idea of “wasted votes” makes us infer, that just because voters in Oshkosh trust a beloved 10-term incumbent and give him 80 percent of their votes, it means his party deserves more representation in Madison or some other completely different part of the state. In similar fashion, the efficiency measurement would falsely infer from the unusually low vote totals for an incumbent caught habitually driving drunk that his party deserves less representation in other parts of the state. The point of the electoral system set up by the Constitution is to ensure that voters are represented. Our founding document could not care less whether a particular party is represented.
The inferences of the plaintiffs in this case are obviously illogical, and so is the idea of having courts judge redistricting maps based on their outcomes rather than the fairness of the process and rules under which they are drawn.
There is only one reason this case is being heard now. It is that Democrats still haven’t accepted their loss in the 2016 election. They can fall back on Hillary Clinton’s victory in the national popular vote, but they lost the popular vote for the House of Representatives. Incapable, apparently, of accepting that their ideas and candidates have fallen short, they are peddling to their demoralized followers the notion that they lost because of gerrymandering.
The Supreme Court needs to reject this frivolous argument and preserve the democratic character of state government, even if that comes at the expense of the partisan Democratic character of each legislature. That will further embitter the sour-grapes party, but so be it.
