This week, the Supreme Court heard arguments in Gill v. Whitford, a case in which they will decide whether Wisconsin Republicans’ redistricting plan is unconstitutional. Until now, the Court has hesitated to strike down partisan gerrymandering, primarily because there is no objective way of measuring the extent to which it has taken place or deciding how much is too much.
In considering the case, the Court will rely heavily upon the “efficiency gap,” a mathematical exercise based on how many votes each party “wastes.” The theory goes like this: The goal of gerrymandering is to win as many districts as possible with the voters your party has, and this is done by dividing those voters into districts where they are a majority but not a very big one — 51 percent of the vote wins an election just as much as 80 percent does, so those “extra” voters will do more good for the party elsewhere. And when an area is so dominated by the other party’s voters that there’s no way to win it, gerrymandering entails packing as many of the other party’s voters as possible into that district to reduce their sway elsewhere. Thus votes are “wasted” when they are cast for a losing candidate, and when they are above and beyond what a winning candidate needed to win. The “efficiency gap” measures the partisan disparity in wasted votes — and in Wisconsin there is an efficiency gap that favors Republicans.
That might seem to be the objective standard that the Court has pined for in the past. But the efficiency gap is a deeply partisan model. As Guy Harrison and Jason Torchinsky have explained, it fails to take account of numerous factors, including that Democratic voters tend to cluster in big cities, which necessarily affects how they are spread out (or not) among districts. As a result, the Republican-drawn Wisconsin districts, which have relatively normal-looking and fair boundaries, appear unreasonably partisan through the lens of the efficiency gap, while clearly politicized Democrat-drawn districts look appropriate.
Republicans often take a larger share of blame for gerrymandering than their Democratic counterparts, and since Gill broke into the national media, that hasn’t slowed down; indeed, the case has been called an attempt to solve the problem of “Republican” gerrymandering. But courts and journalists don’t often use the efficiency-gap measure to illustrate the phenomenon. Instead, they rely on its more obvious manifestation: a bizarre shape, drawn without regard to traditional redistricting criteria in an attempt to include or exclude certain voters. And this isn’t just because such districts make for amusing visualizations.
To cite an amicus curiae brief in Gill, “traditional criteria include promoting compactness of districts, ensuring their physical contiguity, following natural boundaries, preserving the integrity of political subdivisions, and protecting communities of interest.” In fact, the traditional-shape standard is where the word “gerrymander” originates: It’s a portmanteau of Massachusetts governor Elbridge Gerry’s name and his salamander-shaped district. Calling a regularly shaped district a gerrymander is therefore incorrect by definition.
Perhaps the most fascinating aspect of gerrymandering is that by this measure, the widely accepted one, Democrats are probably more at fault than Republicans in the war they say they’re trying to win. Simply put, Democrats stand to gain far more from redrawing districts on weirdly shaped political lines than Republicans do.
Geography factors a great deal into why one party tends to win more congressional elections; as mentioned above, Democratic voters are packed densely into large cities, while Republicans are spread throughout the country more evenly. This “unintentional gerrymandering” leads to a national average bias of five points nationwide for the GOP. So while Gill may make politically motivated redistricting seem like a Republican problem, some of the most dramatic gerrymanders are actually the fault of Democrats, attempting to maximize their power in heavily blue states or hold on to seats when they swing toward the right.
California is one of the most gerrymandered states.
California is a good example. Today it is one of the most gerrymandered states, owing to redistricting after the 1980 census by Democrats led by then- and now-governor Jerry Brown. Fearing the loss of many seats due to Reagan’s landslide victory, they proposed a plan that would keep five Democratic seats safe; Congressman Phillip Burton, the districts’ architect, called the map “my contribution to modern art.” Despite a challenge by the state’s Republicans to overthrow the redrawing for the upcoming election, the California supreme court ruled that it was impractical to attempt to redraw the districts again. That year, Republicans won the gubernatorial race and defeated Brown to flip a U.S. Senate seat, but Democrats won 60 percent of the House seats with only 49 percent of votes. Hours before he left office, Brown signed the controversial redistricting legislation into law.
Many district lines in Illinois — and particularly the Chicago area — have been drawn to minimize Republican influence, hold Democratic seats in the House, or protect or appeal to a particular class or race. One of the most notoriously preposterous lines is that of Illinois’s fourth.
Called “the earmuffs,” the district was drawn by Democratic mayor Richard M. Daley in the early 1990s to achieve what he called a “Latino district.” The fourth wraps around the seventh district to include a large percentage of Puerto Rican voters in the northern part and Mexican-American voters in the southern part. The only geographical connection between them is a small section of Interstate 294. The district is 72 percent Hispanic, and since Daley redrew it for the 1992 election, incumbent Luis Gutiérrez has won each subsequent election by more than 75 percent of the vote.
But perhaps the most notorious gerrymandering is that of Maryland, whose third district has been described as a “broken-winged pterodactyl, lying prostrate across the center of the state.”
Of all the gerrymanders, this is probably the most bizarre. And it is the Democrats dominating Maryland’s assembly who ensure the state stays carved up to keep Republicans in the minority. In fact, only one Republican, Andy Harris, represents Maryland in the House. His district, the first, is massive, and encompasses more than a third of Maryland’s total area.
The fight over Florida’s third and fifth districts, meanwhile, reveals a cynical racial aspect to gerrymandering, one in which Republicans happily agree to the creation of “black districts” because they pack Democratic voters together. In 1992, Corrine Brown became the first African American to win a congressional election in Florida since Reconstruction by winning the third district — which she’d played a role in drawing. As a member of the state house, she’d participated in a lawsuit urging the creation of majority-minority districts after the 1990 census.
Brown continued to fight for her district in 2012, protesting when the Supreme Court struck it down as an unconstitutional racial gerrymander (a topic it’s proven less squeamish about than partisan gerrymandering). She argued that this and subsequent challenges were unfair to black voters, even calling attempts to redraw the district a “giant step backward to our state’s Jim Crow days.” When the district was eventually redrawn, Brown was redistricted to Florida’s fifth, and Ted Yoho, a Republican, won the third.
Speaking of the fifth, it now stretches 200 miles from the poorest parts of Jacksonville, along the state’s northern border, and finally to include the poorest parts of Tallahassee. Brown won it by 50 points in the 2012 election.
Of course, Democrats aren’t the only ones who carve up state strongholds to increase power. Texas is a good example, especially as evidenced by the state’s 15th district. Drawn by Republicans, its representative is Democrat Vicente González, and the U.S. House considers Gonzalez to represent McAllen, Texas, a border town near Texas’s southern tip. But while the district begins in McAllen, it stretches over 250 miles north, ending just south of San Marcos, Texas, which is outside San Antonio.
The district is 2.4 percent white, 2.1 percent black, and 80.6 percent Hispanic. Since its creation in 1920, it has voted for the Democrat in every election. The closest election in the district’s history was in 2014, when Rubén Hinojosa won by 11 percentage points. And in August, a federal court forced Republicans in Texas to redraw two other districts for the 2018 elections, the 27th and the 35th, to eliminate race-based bias in line drawing.
But in most other Republican states, this kind of redrawing isn’t necessary. Most states in the South and those west of the Mississippi River look relatively normal, although low population in the plains and Western states does make the process simpler than in states like Illinois.
Gill is a foolish case, because it uses a simple measure to judge a complex problem. But even if Gill succeeds and the Wisconsin GOP is forced to re-draw its lines, Democrats will win only a political victory. If they want to fix the so-called ideological problem of gerrymandering, the battle begins in Democratic strongholds.
— Philip H. DeVoe is a Collegiate Network Fellow with National Review.