The partisan left is in a dither: unless the Supreme Court Whitford v. Gill case requires "equal" legislative lines, the country will cease to be democratic — or was that Democratic?
The petitioners object to a 2012 Assembly district boundary map created by the Wisconsin legislature for violating equal protection by drawing districts resulting in Democrats winning a majority of the popular vote but Republicans receiving 60 percent of the seats in the legislature.
The Washington Post’s Dana Milbank called Wisconsin’s process anti-democratic "gerrymandering" after an old Massachusetts governor who drew a district running widely across his state for partisan advantage. Gov. Elbridge Gerry acted back in 1812 and drawing lines politically has been a reality ever since — but now the process favors Republicans so it must be unconstitutional.
The Supreme Court has historically ruled that redistricting is inherently political and thus not justiciable; but in 1986 implied it might consider such cases in the future. This was reinforced by swing-vote Justice Anthony Kennedy adding in 2004 he could review apportionment abuses "if some limited and precise rationale" could be found to measure unconstitutional redistricting.
The argument of petitioners and progressives today is that technology has changed everything. In considering the Court case, Milbank argued, "Political gerrymandering has become dramatically more precise in disenfranchising voters with the revolution in data analytic — both in states such as Wisconsin and in Congress, where Democrats need to win the popular vote by more than seven points to break even in the [state] House."
The courts entered this "political thicket" in 1963, requiring state legislatures to apply a "one man, one vote" standard in creating equal population districts. As the ACLU notes, a state can justify a deviation greater than 10 percent based only on a reasonable standard "such as drawing districts that are compact and contiguous (all parts connected and touching), keeping political subdivisions intact, protecting incumbents, preserving the core of existing districts, and complying with the Voting Rights Act."
Wisconsin justified its deviations under these standards which required the petitioners to devise a new one.
To satisfy Kennedy, the plaintiffs offered a "precise" standard to judge inequality by introducing what they called an "efficiency gap" measure of "wasted" votes that are unnecessary to provide a candidate’s victory, setting seven percent as excessively wasteful. The percentage seems arbitrary.
Wisconsin itself had court-drawn districts between 2002 and 2010 where the efficiency gap favored Republicans up to 12 percent but Democrats were able to win an Assembly majority in 2008 anyway. One-third of states have "efficiency gaps" of seven percent or more.
There is a deeper problem. Not only were the earlier court standards utilized by the state of Wisconsin in drawing its districts, they argued that meeting them forced more partisan districts, especially the Voting Rights Act and the requirement for compact and contiguous districts.
An extensive study in the Quarterly Journal of Political Science by the University of Michigan’s Jowei Chen and the Hoover Institution’s Jonathan Rodden titled "Unintentional Gerrymandering" explained why. They concluded Democrats have a "human geography" disadvantage because their voters are "inefficiently concentrated in large cities and smaller industrial agglomerations such that they can expect to win fewer than 50 percent of the seats when they win 50 percent of the votes." Republican voters are more evenly distributed in suburban, exurban, small-town, and rural districts.
This unintentional gerrymandering produces an average Republican advantage of five percent nationwide and seven to eight points in such states as Pennsylvania and Georgia. In Florida, Republicans had a natural advantage average of 61 percent for House of Representatives seats
Chen and Rodden found that traditional redistricting reforms in states with urban centers and large rural peripheries that mandate so-called objective districting criteria like compactness, contiguity, municipal boundaries and voting rights "are likely to lock in a powerful source of pro-Republican electoral bias that emanates from the distinct voter geography of these states."
Under such conditions the authors concluded that a successful court petitioner "would need to demonstrate an "egregious" gerrymander that was intentional. But "proving such intent will be difficult" in states where "bias can emerge purely from human geography."
Milbank’s demand for the restoration of the "integrity" of democracy by having non-elected courts draw lines rather than an elected legislature is a bit odd anyway.
He dismissed Chief Justice John Roberts’ counter argument that courts have refused to get into these cases because they would become mired in the politics of 50 states and constantly subject to charges of political bias, undermining their legitimacy. Milbank’s wisdom on Roberts’ concerns was to tell the court to take shorter vacations to deal with the increased workload.
Justice Roberts was wiser; for Justice Kennedy will not find a "precise rational" here but merely a political thicket the Supreme Court would be sensible to avoid.
Donald Devine is senior scholar at the Fund for American Studies, the author of "America’s Way Back: Reclaiming Freedom, Tradition and Constitution," and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term. For more of his reports, Go Here Now.
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