Spaghetti Districts

Source: Wikimedia Commons

Just a few days ago, Reuters reported that the Pennsylvania Supreme Court ordered the Pennsylvania legislature to redraw the districts (pictured above) used when electing members of the US House of Representatives. The court ruled that the shape of the districts gave an unfair partisan advantage to Republicans, in violation of the state constitution. In order to attain this advantage, Pennsylvania Republicans created districts with contorted, nonsensical shapes; district 7, in particular, was ridiculed for resembling "Goofy kicking Donald Duck."

The process of drawing legislative districts to give a group of people more or less voting power is called gerrymandering; when the groups are political parties, it is partisan gerrymandering. It isn’t a new practice; gerrymandering has been around for centuries. The term has its origins all the way back in 1812; its peculiar name is a portmanteau of “Gerry” (Massachusetts’ governor at the time) and “salamander” (the shape of the district he was associated with).

But recently, partisan gerrymandering has become both more prominent and more one-sided. When Republicans controlled a plurality of state legislatures after the 2010 elections, the practice transformed from a blemish on our democracy to a massive hole in it.

A project called the Redistricting Majority Project (REDMAP for short) was launched by the Republican State Leadership Committee (RSLP), the organization responsible for coordinating state-level Republican party actions, with the goal of creating “20-25 new Republican Congressional Districts through the redistricting process... solidifying a Republican House majority.” REDMAP was by far the most advanced and most coordinated gerrymandering effort in American history.

And this wasn’t done behind closed doors, with hushed voices; the above quote comes from the second paragraph on REDMAP’s website, a bombastic, red-white-and-blue affair, complete with a shining American flag in the background. Later on, the website even boasts of “a 33-seat [Republican] margin in the U.S. House” despite “over one million more votes cast for Democratic House candidates than Republicans.” Frankly, the brazen defiance of democracy it displays is sickening.

So if gerrymandering is such a terrible thing, and if it keeps getting struck down by courts, why is the RSLC, one of the most prominent national Republican groups, rubbing its partisan intentions in our faces?

Because partisan gerrymandering isn’t actually illegal.

Well, not yet, anyway. As of now, the prevailing opinion of the US Supreme Court, in the 2004 case Vieth v. Jubelirer, holds that “political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.” Basically, there is no metric that can measure partisan gerrymandering in such a way that the US Constitution would forbid it.

This ruling overturned the previous 1986 opinion in Davis v. Bandemer, in which the court, while upholding gerrymandered districts, ruled that such a case would be justiciable if a reliable way were found to measure gerrymandering.

If you’ve been following the news recently, you may have read that the Supreme Court is hearing another case involving partisan gerrymandering, this time in Wisconsin. What’s different this time around? Since their 2004 ruling, a new measure of gerrymandering has been proposed: the efficiency gap.

The efficiency gap is a percentage calculated by measuring the “wasted votes” (votes that do not contribute to a winning candidate) of each party, taking the difference, and dividing that difference by the total votes cast. It provides a quantifiable measure of partisan gerrymandering, and can be easily applied and understood (for the source of this math, as well as more discussion of the efficiency gap, see this New York Times article).

Whether the efficiency gap is a sufficiently rigorous measure for the Supreme Court is still to be determined. If it is, it’s a big win for voting rights groups and the Democratic party; if not, then federal partisan gerrymandering cases are moot until the Supreme Court has a different ideological makeup.

Full disclosure: I am not a lawyer. Do not trust me. But if you asked me, I would guess that this Supreme Court case isn’t going to change a thing. The language of Vieth v. Jubilier seems to imply that any mathematical standard would need universal acceptance and a complete lack of ambiguity, two things that are practically impossible.

So the most likely outcome is that we’re stuck with the rampant gerrymandering brought on by REDMAP. And unless the Democratic party can win a lot of state legislatures in 2020, the problem will only get worse, as computational gerrymandering tools become more effective. Already, a citizenship question has been proposed for the 2020 census, a move which could shift apportionment power evenfurther towards Republican states.

And legislative solutions? Forget it. As long as Republicans secure at least 41 votes against such a bill in the US Senate, they can filibuster any law that might forbid gerrymandering (and that’s assuming every Democratic senator votes for the bill). Constitutional amendments, requiring three quarters of the state legislatures to agree, are even further out of the question.

Ultimately, gerrymandering is, in my opinion, one of the most obvious flaws in our system of government. It's a simple case of those in power making the rules to keep themselves in power. But, unless the Supreme Court deems it unconstitutional, it's a problem that's probably here to stay for decades. As of now, the only recourse is state courts and constitutions, as was the case in Pennsylvania.