Writing the Redistricting Playbook
Writing the Redistricting Playbook
As the country waits to hear the Supreme Court’s ruling in Gill v Whitford, one may hear the term “judicially manageable” thrown around more than a few times. This phrase refers back to Vieth v Jubelirer (2004), in which a plurality in the Court ruled that partisan gerrymandering was nonjusticiable (or out of the Court’s purview) due to the lack of a judicially manageable standard to measure the extent of partisan gerrymandering.
A Court-approved metric has been elusive, as many have been struck out as too ambiguous to apply in the courts. A judicially manageable standard of partisan gerrymandering must fulfill two key requirements: 1) the metric must be derived from a specific right in the Constitution and, 2) the metric must provide the Court clear guidance on how to rule in these cases. In other words, the standard must quantify when a redistricting plan should be considered a partisan gerrymander and how the plan violates the Constitution.
The Gill v Whitford case evaluates the 2011 redistricting map of Wisconsin’s state legislature, accused of violating both the Equal Protection clause and the First Amendment freedom of association. For the many groups fighting gerrymandering, including CEE, Gill v Whitford is one of the best opportunities for opponents of gerrymandering to prove that a judicially manageable standard exists. The Supreme Court is expected to issue its ruling in June 2018.
Political scientists, mathematicians, and reformers have all attempted to develop a standard for decades, each slightly different than the next. Two of the most promising ones here, are based on work done by Gelman and King as well as Stephanopoulos and McGhee, though there are others, such as Samuel S.-H. Wang’s Three Test standard.
Partisan Symmetry - Gelman and King
The standard of partisan symmetry, developed by Andrew Gelman and Gary King, is popular among many political scientists. The statistician and political scientist, respectively, argue that if one party has the ability to gain 70% of the seats with 55% of the vote, the competing party must be able to do the same. This principle differs from simple proportionality, which demands a party gain 55% of the votes to win 55% of the seats in the House.
While the standard itself has not successfully convinced the Court yet, some argue that it meets all of the Court’s demands. The principle of partisan symmetry can be said to derive from the equal treatment of voters, a constitutional right; thus, one cannot treat voters equally without treating parties equally.
Efficiency Gap - Stephanopoulos and McGhee
In 2014, Nicholas Stephanopoulos and Eric McGhee provided one of the newest and most promising standards of quantifying gerrymandering. A type of partisan symmetry, their so-called efficiency gap has generated interest and excitement.
The efficiency gap presents the difference between each party’s wasted votes, as a percentage of the total vote. A party vote is “wasted” if it is in a losing district or if it exceeds the 50% threshold needed to win a district. If the efficiency gap is greater than 8%, then the district could qualify as being unconstitutionally gerrymandered according to the authors. In response to concerns about measures of partisan symmetry raised by the Court in previous cases, Stephanopoulos and McGhee also suggested a legal framework for implementing the efficiency gap in future redistricting trials.
While the efficiency gap excels in providing clear guidance to the Court to determine instances of partisan gerrymandering, some argue that it is not as clearly derived from the Constitution as the original partisan symmetry standard.6 The critique is indicative of the challenge to develop a judicially manageable standard: it’s hard to satisfy every requirement.
Reformers are well aware of this. In fact, multiple metrics were used together in Gill v Whitford in order to provide a robust, judicially manageable standard. Working towards developing this standard to convince the Court is crucial, as redistricting reform has historically originated from the judiciary. No matter the outcome, Gill v Whitford will have a large impact on the fight for fairer elections.