New hope to end gerrymandering, the cancer of democracy
I’m really excited about this, and more hopeful about the US than I have been for a long time.
David Daley writes in Salon:
Gerrymandering, the process of drawing distorted legislative districts to undermine democracy, is as old as our republic itself. Just as ancient: the Supreme Court’s unwillingness to get involved and determine a standard for when a partisan gerrymander has gone too far.
That might be changing. During the 2000s, Justice Anthony Kennedy expressed openness to a judicial remedy, if an evenhanded measure could be devised to identify when aggressive redistricting was no longer just politics as usual.
When the pivotal swing justice looks for a standard, law professors and redistricting nerds get to work. There are now several cases related to the extreme maps drawn after the 2010 census – by Republicans in Wisconsin and North Carolina, and by Democrats in Maryland – on a collision course with the Supreme Court.
The case with the most promise to deliver a lasting judicial remedy is Whitford v. Gill, from Wisconsin, which advances a fascinating standard called the “efficiency gap.” It is the brainchild of law professor Nicholas Stephanopoulos and political scientist Eric McGhee, but has an elegant simplicity that is easily understandable outside of academia. If gerrymandering is the dark art of wasting the other party’s votes – either by “packing” them into as few districts as possible, or “cracking” them into sizable minorities in many seats – the efficiency gap compares wasted votes that do not contribute to victory.
In November, a panel of federal judges smiled upon this standard and ruled that the state assembly districts drawn by a Republican legislature in the Whitford case represented an unconstitutional partisan gerrymander. “Although Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizable disparate” advantage held by Republicans under these new maps, wrote the court.
The judges ordered new state assembly maps in time for the 2018 election – a big deal, considering these district lines have helped give Republicans their largest legislative majorities in several decades, despite years in which Democratic candidates receive more votes. But just as important, it accepted the “efficiency gap” rationale and sent it toward Justice Kennedy. If Kennedy finds it workable, it would become much more difficult for politicians to choose their own voters and rig maps in their favor.
If this case makes history, it will be thanks to the commitment of lawyers and political scientists, but also to the Wisconsin citizens who launched it, starting with regular meetings at a Madison tea room. The plaintiff whose name could become synonymous with taming the gerrymander and restoring fairness and competitiveness to our elections is a retired law professor named Bill Whitford. We sat down at a redistricting conference at Duke University this month to discuss his case, the efficiency gap and all the luck it has required along the way.
Let me start with the obvious questions: How did you become interested in redistricting? And how did you become the plaintiff in what could be the most important Supreme Court decision on partisan gerrymandering ever?
I’ve been a political junkie from the word go. I grew up in Madison. My mother was very political. By the time I was 13 or 14, I was a big-D Democrat, working on campaigns. I was chairman of the Young Democrats as an undergraduate at the University of Wisconsin. Then I went to law school straight out of college, mostly interested in constitutional law. Baker v. Carr was decided [in 1962] while I was in law school. I wrote my very first academic article, as a student, on Baker v. Carr.
That’s amazing: Baker v. Carr is the decision that allows the federal courts to get involved in redistricting matters. The hunt for redistricting’s holy grail – a standard to measure partisan gerrymandering, the goal of Whitford – begins there.
Yes, it argued even then about what the standard should be. I got a job as a law school professor teaching assigned contracts, and then went a different way in terms of my academic specialties. But I always remained a Democratic activist interested in politics and redistricting. That’s my birthright, I guess!
Your retirement comes 50 years after the Baker decision, and at a time when Wisconsin is the new ground zero of the gerrymandering fight. Republicans captured both chambers of the state legislature in 2010, Scott Walker became governor, and the maps they enacted in 2011 are some of the most tilted any state has seen in four decades. Democrats win more votes, but Republicans win an outrageous 2012 Assembly supermajority anyway. How did you join the fight?
There was a group that met and talked in the Watts Tea Room in Madison that grew out of the lack of success of the first legal challenge to these maps. [The court found an unconstitutional racial gerrymander in that case and forced several largely Latino districts in Milwaukee to be redrawn.] I wasn’t a part of the original group, but the guy who was as responsible as anybody for it was a Wisconsin legislator and redistricting guru named Fred Kessler. We’d been active in Young Democrats as undergraduates. He knew that I was retiring and asked me if I would like to join the group. That’s how I became involved in this case.
Let me get this straight: You’re saying that we’re this close to a national standard on partisan gerrymandering because a group of frustrated old friends and retirees had a regular meeting at a Madison tea room and put this whole thing together?
Well, some of the members of that group were lawyers in the earlier case. They were very aware of the kind of information [about the behind-the-scenes GOP redistricting chicanery] that was available in discovery. We knew we had a lot of smoking-gun evidence that would indicate partisan intent, and it turned out that we had even more than we thought. But by then we also had the results of the 2012 elections, where Democrats got a majority of the statewide vote but only 39 percent of the seats. By any measure for partisan effect, that was pretty good data. Then we began shopping for lawyers and we stumbled onto Nick Stephanopoulos and Ruth Greenwood.
That’s remarkable luck: Nick and Eric McGhee had been studying the Wisconsin redistricting. Using a new standard they developed called the efficiency gap to quantify the impact of a partisan gerrymander, they discovered that you had one of the most unrepresentative legislatures in any state over the last several decades. How did you stumble across this?
One of the roles I played in the group was to reach out to professors in academia, both to feel them out for ideas and to see if they thought we had a decent test case. We thought we had a very good fact situation for a test case, but there was also the issue of whether we should wait for the 2020 cycle before it wound up in court. Rick Pildes of NYU Law School was one of these people. I just called him up cold.
Turns out, Rick got the original Stephanopoulos and McGhee draft paper where they explained the efficiency gap. As part of the election-law community, he’d been asked to make comments. He alerted us to this and suggested Eric would make a good expert witness. I read the article and saw that he talked all about Wisconsin. That’s how we got into the efficiency gap. Then in my initial phone call with Nick, he mentioned that his girlfriend was the incoming voting rights director for the Chicago Lawyers Committee for Civil Rights. Ruth and Nick soon came to Madison and started meeting with the group.
How do you explain the efficiency gap to your friends and neighbors? It’s complicated and involves math. What’s the elevator pitch?
I simply start out talking about “packing and cracking.” They’re the essential tools of gerrymandering. I don’t really stress the efficiency gap. If I had to explain the efficiency gap, I’d go to the concept of lots of wasted votes – but I would first start off with packing and cracking, then explain wasted votes in the context of packing and cracking.
And what do we mean by “wasted votes” in this context? . . .