Schneider:
A silly measure of partisanship.
In a swipe at academia, the late publisher of National Review William F. Buckley once famously said he’d rather be governed by the first 2,000 people in the Boston phone book than by the Harvard faculty. His jibe may soon be put to the test.
Last week, the U.S. Supreme Court heard oral arguments in a case that threatens to make a backroom formula cooked up by academics the law of the land. The so-called “efficiency gap” is being used to prove that Wisconsin’s legislative maps are too partisan and thwart the voting rights of those who would like to see Democrats run the state Legislature. For decades, minorities have been granted a special classification during reapportionment to protect their voting power; up to now, frustrated professors have not.
The efficiency gap standard, created by researcher Eric McGhee of the Public Policy Institute of California and professor Nicholas Stephanopoulos of the University of Chicago Law School around the time people started using the word “bae,” attempts to determine how many votes a party “wastes” in drawing legislative maps. According to the formula, any vote that doesn’t help one political party win a district is “wasted,” as it could have gone to help win another district. By definition, every losing vote is wasted, as it didn’t result in victory.
Critics of Wisconsin’s map argue its high efficiency gap means the plan was drawn with an unlawful amount of partisan intent. The formula’s authors, for a reason known only to them, believe any efficiency gap more than 7% should be considered an unconstitutional gerrymander, and thus must be thrown out by the courts. Under Wisconsin’s current map, Republicans enjoyed an efficiency gap of 13% in 2012 and 10% in 2014.
Yet district judge William Griesbach called it an “unhelpful and dangerously misleading” statistic for measuring partisanship, noting that maps in the previous decade, drawn by courts and not legislatures, saw an average efficiency gap of 7.6%, reaching a high of 11.8% in 2006 — higher than the current gap.
In fact, much of the “gap” has little to do with gerrymandering at all, and a great deal to do with the geography of how citizens are dividing themselves by political affiliation. As the Wisconsin Institute for Law and Liberty notes in their amicus brief, in 1992, 39% of Americans lived in a county that a presidential candidate won by a margin of greater than 60% to 40%. By 2016, that number had increased to 61% of Americans. Further, Democrats typically cluster in big cities, making it impossible to draw competitive districts.
Additionally, voters’ politics are not static. If they were, Donald Trump wouldn’t have won Wisconsin, which hadn’t gone to a Republican since 1984. Each individual legislative district is its own story, and the outcome can be affected by incumbency, local issues, money spent, the quality of the candidates and myriad other issues.
In effect, quantifying partisan makeup through a single formula is like trying to judge a baseball team simply through analytics and statistics. According to the fashionable “Moneyball” craze, the Milwaukee Brewers should have been one of baseball’s worst teams this year; the team ranked 21st in the league in batting average, 17th in on-base percentage and led the league in strikeouts. Yet players are real people who play in real games, so the Brewers ended up challenging for a wild card spot right up until the end.
This is why the U.S. Supreme Court has never been able to identify a standard by which legislative districts can be determined “too partisan.” In fact, three decades ago, the Court upheld a map in Indiana that had a higher efficiency gap than the one Wisconsin has now.
No one contests that the Wisconsin maps were drawn for partisan advantage — but using the apportionment process for political gain was a common tactic even before the U.S. Constitution was ratified. The Supreme Court should recognize that legislatures are uniquely qualified to respond to the changing dynamics of the electorate and not succumb to the academic conceit that American history can be crammed into a tidy formula.