A Gerrymandering Lifeline, Thrown From Wisconsin
A court ruling that might alter North Carolina’s future
This federal court ruling from Wisconsin on Monday is, potentially*, a huge deal for North Carolina. If the U.S. Supreme Court—specifically, according to The New York Times, Associate Justice Anthony Kennedy—upholds the ruling, we could be looking at a completely redrawn district map in North Carolina (and other states) that breaks the Republican Party’s stranglehold on state politics.
Two things make the Wisconsin decision different from any other court’s ruling on a gerrymandering challenge. One: Its acceptance of the argument that legislative and Congressional districts don’t have to be twisted into grotesque shapes to be unconstitutional (from the Los Angeles Times):
A group of 12 Democratic residents of Wisconsin had sued, contending the state plan deprived them of the right to have their voices heard on an equal basis. They did not claim the districts were drawn with squiggly lines or made for peculiar looking districts. Instead, they said GOP consultants had used software programs to draw an electoral map that ensured Republicans would win a majority of the seats, regardless of how the state’s voters split.
This software was not widely available in a Census year until 2010, which happened to be the first time in 140 years that the Republicans won control of both legislative houses in North Carolina. (One might say the software allowed them to redraw district lines “with almost surgical precision.”) This is critical, just on basic conceptual grounds; when someone says “gerrymandering,” what pops into your head is usually some grotesquely misshapen district that writers empty their verbal satchels to describe—such as, for example, the old First and 12th N.C. Congressional districts, the most gnarled sections in the map above.
But the ruling from Wisconsin makes clear that the districts can look fine to the casual observer but, if drawn with meticulous and ill intent, can still tilt the electoral field in a way that illegally entrenches one party’s power. Like the new North Carolina map (below), redrawn early this year after a similar three-judge panel in federal court threw out the old one. The U.S. Supreme Court is expected to decide before the end of the year whether it will hear plaintiffs’ appeal of the new map—and the decision from Wisconsin could help determine whether it does.
The second thing that makes this ruling so important: For the first time, it lays out a specific formula courts can use to determine when the people drawing the lines have crossed another kind of boundary (from The New York Times; emphases mine):
The boundaries of both federal and state legislative districts are redrawn every 10 years after the census to ensure that each district contains roughly the same number of people, a standard the Supreme Court set with its one-person-one-vote ruling in 1962.
But both Republican and Democratic majorities in statehouses often remap districts to favor themselves, either by cramming opposition voters into a single district or by dividing them so they are the majority in fewer districts, tactics called “packing and cracking.”
Courts have generally agreed that some partisan advantage in redistricting is tolerable, in part because voters themselves are not spread equally across a state or district by party. But the plaintiffs in the case, 12 state Democrats represented by the Campaign Legal Center, had argued that the Wisconsin remapping was among the most sharply partisan in the nation.
Their lawsuit said that in the 2012 elections for the Assembly, Wisconsin Republicans won 48.6 percent of the two-party vote but took 61 percent of the Assembly’s 99 seats.
A key question in Monday’s ruling, as in past challenges to redistricting, was whether that division was unacceptably partisan, a question that previous courts have stumbled over.
“Nobody has come up with a standard to measure constitutionality — how to distinguish between malevolent, evil partisanship that’s manipulative, versus the natural advantage one party might have as a result of where voters happened to live,” said Edward Foley, the director of the Election Law Project at Ohio State University’s Moritz College of Law.
In Monday’s ruling, the court was swayed by a new and simple mathematical formula to measure the extent of partisan gerrymandering, called the efficiency gap. The formula divides the difference between the two parties’ “wasted votes” — votes beyond those needed by a winning side, and votes cast by a losing side — by the total number of votes cast. When both parties waste the same number of votes, the result is zero — an ideal solution. But as a winning party wastes fewer and fewer votes than its opponent, its score rises.
A truly efficient gerrymander spreads a winning party’s votes so evenly over districts that very few votes are wasted. A review of four decades of state redistricting plans concluded that any party with an efficiency gap of 7 percent or more was likely to keep its majority during the 10 years before new districts were drawn.
In Wisconsin, experts testified, Republicans scored an efficiency gap rating of 11.69 percent to 13 percent in the first election after the maps were redrawn in 2011.
It’s complicated, I know. But the basic point is that once a party in power crosses a certain boundary in securing its electoral advantage, it runs afoul of the Constitutional principle of “one person, one vote.” The Wisconsin ruling sets that boundary, which then can be applied to any redistricting map—including North Carolina’s. It can be challenging to follow this and other balls as they bounce through the courts. But this one is worth watching closely, because it could determine whether Republicans control North Carolina state government indefinitely.
*I feel compelled to add a caveat here: A lot will depend on American institutions functioning roughly as designed after January 20, which for the first time in my life I can’t automatically assume.
Update, 8:40 p.m.: I feel dumb. I flat whiffed on the even larger issue here—that this could mark the first time the Supreme Court has ever rejected a redistricting plan because it establishes a partisan, rather than racial, gerrymander. Here’s the succinct explanation from The Washington Post’s Robert Barnes, a veteran in SCOTUS coverage:
Although justices are often called to decide whether legislative and congressional apportionment plans are unconstitutional because of racial gerrymandering, it has never struck down a plan because it was too partisan. Some justices take a "to-the-victor-goes-the-spoils" view of redistricting; others think it an unconstitutional problem.
In the court's last look at the subject, Justice Anthony M. Kennedy ruled against the challengers at hand, but he noted that there could come a case where "the burdens and restrictions on groups or persons by reason of their views" would be so severe as to violate their First Amendment rights.
State Senator Jeff Jackson of Charlotte posted about this in more explicit terms on his Facebook page, too.