The Democrats have a political problem and a geographic problem. This problem goes beyond the number of seats Democrats must gain to control the U.S. House or many statehouses, and surpasses the unfavorable map Democrats face in the Senate. The problem facing the Democrats nationally is that their voting base is tightly clustered into coastal states and large urban areas. To fix this geographic problem, Democrats are not seeking a political solution to try to persuade more American voters to support their principles. Rather, Democrats are seeking to persuade the United States Supreme Court to adopt a wholesale change in how electoral districts are created in this country.
On Tuesday, the Supreme Court will hear the “partisan gerrymandering” case Gill v. Whitford. Essentially, the Democrats’ claim is that the Wisconsin legislature, when drawing their state’s electoral districts, used an “unconstitutional” amount of politics when drawing the district lines. This is a claim that would have been as absurd to our founding fathers as it is today. Even more absurd, Democrats’ efforts to prove that politics played an unconstitutional role have forced them to rely on a strange, unproven, and methodologically unsound mathematical exercise they call the “efficiency gap.”
The so-called efficiency gap seeks to measure the amount of proportional representation a party “should” receive among any number of districts in a two-party race. On its face, the efficiency gap sounds eminently reasonable, but scratch the surface and it becomes apparent that there is no “there” there. The efficiency gap’s flaws are detrimental to American democracy as we know it.
First, and most important, the Supreme Court has held over and over again that there is no right to proportional representation. Proportional representation simply means that if a state’s votes are split 50–50 between the GOP and the Democrats in a statewide race, there should also be nearly equal representation in that state’s congressional delegation or in the state legislature. The fundamental reason proportionality has never been required by the courts is that the Constitution gives the states the power to determine the “Times, Places, and Manner” of holding elections. Consequently, as Justice Kennedy so aptly put it in the seminal case Vieth v. Jubelirer (2004), “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”
Second, the “efficiency gap” does not take into account vote switchers or cross-ballot voting. The analysis assumes that every voter who voted Democratic in a statewide election voted only for Democrats down the entire ballot. This is a flawed and fatal assumption that does not comport with common sense, let alone any amount of academic scrutiny. One need only look at the 2016 elections to see how flawed this assumption is in practice. There were several studies undertaken to see how many people switched votes from President Obama in 2012 to Donald Trump in 2016. Multiple surveys concluded that anywhere between 11 percent to 15 percent of voters voted for Obama in 2012 and then for Trump in 2016. Furthermore, there were over 30 congressional seats in which the U.S. House member who won the seat was from the opposite party of the presidential candidate who received the majority of votes in that same district. In other words, voters in those districts voted for Clinton or Trump and then voted for a candidate of the opposite political party to represent their interests in Congress. The “efficiency gap” does not even attempt to measure this phenomenon.
Third, the “efficiency gap” does not take into account the geographic placement of voters. It is an established phenomenon of American electoral politics that, generally speaking, Democrats live in urban areas and Republicans live in more suburban and rural areas. Precedent or legal requirements in many states mean that the shapes of districts meet certain traditional criteria, such as being compact, following existing political boundaries (such as cities, counties, and wards), and being contiguous (having the entire district connected to the rest so that no part of the district is “on an island”). These factors, combined with the current geographic placement of voters, result in more seats for Republicans than for Democrats. As Justice Scalia noted in Vieth, “political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a natural packing effect.”
In order to “solve” this problem, the plaintiffs in Gill are demanding that the Supreme Court effectively order that every redistricting done by a state legislature reflect the ideal of proportional representation according to the efficiency-gap measure(or some other social-science construct). Such a decision would have wide-ranging implications that would decrease, not increase, the inherent and perceived fairness in the system. Take a look at the state-assembly map in Wisconsin. It is easy to understand and is compliant — as the Gill plaintiffs have conceded — with traditional districting criteria.
Wisconsin’s State Assembly Districts Adopted by Republican-Controlled Legislature
The lines are relatively straight, the map respects existing political boundaries, and ultimately voters will have no problem with determining which district they are in.
Now, look at the congressional map in Illinois, particularly in the Chicago area. Chicago is carved up like a pizza in order to maximize the number of Democratic-controlled seats (which was the stated goal of the Democrats in the Illinois legislature). However, and rather preposterously, the so-called efficiency gap declares the Wisconsin map a gerrymander and the Illinois map a fair redistricting.
Illinois’s Chicago-Area Congressional Districts Adopted by Democratic-Controlled Legislature
It is to be hoped that the Court sees through the smokescreen of “social-science research.” And when the Court does, the Court should conclude that the Constitution vests a political branch of government, the state legislature, with the prerogative to make what are fundamentally political decisions in redistricting as long as concrete legal requirements, such as the Constitution, the Voting Rights Act, and applicable state criteria are followed.
– Guy Harrison, a partner at On Message, Inc., and the former executive director of the National Republican Congressional Committee, is the senior adviser to the National Republican Redistricting Trust. Jason Torchinsky is a partner at Holtzman Vogel Josefiak Torchinsky PLLC, a former counsel at the U.S. Department of Justice’s Civil Rights Division, and general counsel to the National Republican Redistricting Trust.