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The Supreme Court to decide if gerrymandering is unconstitutional

VoterPieChartMichaelBrownDreamstimeMichael Brown/DreamstimeThe U.S. Supreme Court has agreed to hear Gill v. Whitford, a case where the issue is whether the Republican-dominated Wisconsin legislature drew the state's voting district boundaries in such a way as to give their candidates an overwhelming advantage. Republican candidates garnered just 48 percent of the vote statewide in 2012, but took 60 of 99 seats in the state legislature. Earlier this year, a federal appeals court ruled that the Wisconsin's legislature's latest redistricting plan "constituted an unconstitutional partisan gerrymander." The court ordered the legislature to devise and submit a fairer redistricting plan by November 1, 2017.

The practice of drawing district boundaries to establish an advantage for a particular party is called gerrymandering. The name comes from Massachusetts Gov. Elbridge Gerry, who in 1812 signed an egregious redistricting bill. One of the voting districts it created resembled the shape of a salamander; thus, "gerrymander."

Gerrymandering is generally achieved by either "packing" or "cracking." Packing concentrates the opposing party's voters in one district to reduce their voting power elsewhere. Cracking dilutes the voting power of the opposing party's supporters by spreading them across many districts.

With the exception of scrutinizing districts clearly designed dilute the power of black voters, federal courts have been reluctant to involve themselves in redistricting fights. This reluctance stems from courts' difficulty identifying any simple and objective way to determine the extent of gerrymandering. But mathematicians and statisticians have recently turned their attention to the issue, and they may be able to provide some guidance to the courts.

In Gill V. Whitford, the federal appeals court that ruled against the state cited a measure called the efficiency gap. Devised by Nicholas Stephanopoulos, a law professor at the University of Chicago, and Eric McGhee, a political scientist at the Public Policy Institute of California, the efficiency gap scheme measures a state's "wasted" votes. (Basically, votes are "wasted" if they are cast for a defeated candidate or cast in excess of those needed to elect a winning candidate.) In Stephanoupoulos' calculation, the efficiency gap is "the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast." If a party is simultaneously getting an unusually high number of landslide victories and an unusually high number of crushing losses, that would be a sign of gerrymandering.

"Based on their calculations of the efficiency gaps in all redistricting plans over the past 40 years, Stephanopoulos and McGhee suggest setting thresholds above which redistricting plans would be presumptively unconstitutional; if the efficiency gap is 8 percent or more, or if it is enough to change at least two congressional seats, that would be enough to justify a constitutional challenge. In North Carolina's 2012 congressional election, for example, the efficiency gap was 21 percent,, which resulted in the Democratic candidates winning only 4 out of 13 seats. "

Meanwhile, the Duke mathematicians David Mattingly and Christy Graves have devised a program that draws voting district boundaries based on contiguity, geographical compactness, and a difference in population of no more than 0.1 percent. Although Democrats won 50.3 percent of the vote in 2012 in North Carolina, they captured only four of the state's 13 seats in the House of Representatives. In three of the districts drawn by the Republican-dominated legislature, voters were more than three-quarters Democrat. This is a classic example of packing.

The program devised by Mattingly and Graves creates thousands of randomly drawn district maps. Of those maps, they find that on average 7.6 seats would go to Democrats, compared with the four they actually won.

Other researchers are trying to devise fair and objective ways to set voting district boundaries. For example, Nature reports: "At the University of Illinois Urbana–Champaign, political statistician Wendy Tam Cho has designed algorithms to draw district maps that use the criteria mandated by state law, but do not include partisan information such as an area's voting history....Cho measures how closely a state's existing legislative districts line up with billions of non-partisan maps drawn by her supercomputing cluster. If they diverge significantly, then the people who drew the districts probably had partisan motives for placing the lines where they did, Cho says."

District boundaries are often drawn with the goal of protecting incumbent politicians from competition. And indeed, the incumbency rate for the House of Representatives in 2016 was 97 percent. Gerrymandering also discourages contested elections. Consider that the percent of voters whose state senators and legislators ran unopposed increased respectively from 11.3 and 22.2 percent in 1973 to 32.8 and 40.4 percent in 2014.

Researchers have clearly devised some pretty good methods for identifying and avoiding gerrymandering. It is now up to the Supreme Court to decide if the practice is unconstitutional. Stay tuned.

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  • Diane Reynolds (Paul.)||

    If a party is simultaneously getting an unusually high number of landslide victories and an unusually high number of crushing losses, that would be a sign of gerrymandering.

    hmm...

  • Free Society||

    I assume that since Trump is in power and Republicans are generally icky anyways, gerrymandering will suddenly become unconstitutional for anyone but Democrats.

    With the exception of scrutinizing districts clearly designed dilute the power of black voters, federal courts have been reluctant to involve themselves in redistricting fights.

    But carving out districts in such a way to maximize the power of black voters, that's perfectly okay. For all the talk we hear of "institutional racism" in this country, the only genuine examples of this I've ever seen do the polar opposite of discriminate against blacks.

  • Ron||

    I'm in California and the "non-political" district organizing commitee has gerrymandered the republican districts into sticks

  • Devastator||

    It needs to stop everywhere, whether the state is predominately republican or democrat, algorithms can do it much more fairly than humans.

  • Get To Da Chippah||

    So what needs to happen is that every district in Wisconsin be set up so the Republicans get 48% of the vote, see? Then the Democrats win every seat, but fairly!

    ~DERP!

  • Jerryskids||

    Of course they want fair and objective redistricting now that the GOP controls the redistricting in most places.

  • Liberty =><= Equality||

    robc used to tell a story about some corrupt speaker of the Georgia state legislature, back when the donkeys controlled the state legislature, who openly joked about screwing Republicans with redistricting. And of course the reporters present would laugh along with him.

    Then, the day after the GOP finally took control of the legislature, the AJC ran an editorial about the need for an independent redistricting committee made up of (mostly Democrat) retired state judges.

  • Mickey Rat||

    The Georgia Democrats were rather unashamed in their gamesmanship.

  • Devastator||

    There are states where the democrats have done the same thing. I don't see how any red blooded American could want either party to have an advantage when drawing maps. Leave it up to the computers and they'll be far more fair that pointy headed politicians. The gerrymandering in some states is so obnoxiously ridiculous like in texas, NC and Delaware that the states should be ashamed of themselves.

  • Rat on a train||

    Check out Maryland.

  • stuartl||

    Or Virginia. I cross 3 districts in a 1/4 mile stretch on my way to work.

  • Diane Reynolds (Paul.)||

    "Based on their calculations of the efficiency gaps in all redistricting plans over the past 40 years, Stephanopoulos and McGhee suggest setting thresholds above which redistricting plans would be presumptively unconstitutional; if the efficiency gap is 8 percent or more, or if it is enough to change at least two congressional seats, that would be enough to justify a constitutional challenge.

    This seems a bit troubling to me. That we use magical statistics to create a bright line where a constitutional challenge could... or more importantly, could not occur.

    Anything can and should be able to be challenged constitutionally-- it just might not succeed. It seems strange that we'd create a system where if your vote totals don't come to a magical threshold that you'd be denied the opportunity to even make a challenge.

  • Maven Houlihan||

    If you set the threshold at 8 percent, that becomes the new target for every redistricting plan. Sort of like how the various anti-doping agencies in sports set a maximum level of various performance enhancing substances and, wouldn't you know it, every single athlete in that field comes in just a tiny bit below that level.

    So, in every Democrat controlled state, you'll see the Democrat advantage is 7.995% and in every Republican controlled state the Republican advantage will be 7.995%

  • Juice||

    Incentives. How do they fucking work?

  • EscherEnigma||

    "So, in every Democrat controlled state, you'll see the Democrat advantage is 7.995% and in every Republican controlled state the Republican advantage will be 7.995%"
    The fact that this would be preferable to current districts in many places is kind of lost on you, isn't it?

  • TW||

    Sounds like an incentive for Republicans (Democrats) in districts that lean more Democratic (Republican) to stay home on Election Day so that they can run up the other side's margin of victory and then file a constitutional challenge to how the district is drawn.

  • Devastator||

    still better than what we have, which is obviously some states with 50% + advantage in representative for 2% vote advantage.

  • Fist of Etiquette||

    Meanwhile, the Duke mathematicians David Mattingly and Christy Graves have devised a program that draws voting district boundaries based on contiguity, geographical compactness, and a difference in population of no more than 0.1 percent.

    Meanwhile, give me a map and a straight edge ruler and I'll draw your fucking districts.

  • Diane Reynolds (Paul.)||

    +1 middle east.

  • Free Society||

    +1 little bit of credit to the Ottoman Turks plz

  • EscherEnigma||

    Sure. And your districts won't be population balanced.

  • Migrant Log Chipper||

    Fuck off

  • BYODB||

    I would actually prefer it if they just made a lot of big square districts and said 'fuck it'. Who cares if that one district is entirely populated by Old Man Mercer on the ridge; he's also his own congressman. His dog, Blue, is the Senator.

    All of the hand wringing and complex equations are mental masturbation for political scientists on how to rig the system without rigging the system.

  • Qsl||

    The other part is that we will go through redistricting every few years as demographics change.

    All of these notions are attempting a static modality when the situation is inherently dynamic. People move, people change brand affiliation, once thriving areas become ghost towns. The notion of political districting applies to land, not people.

    If you really want to make it fair, have it completely arbitrary. Yes, some areas will have outboard influence, but they should ultimately balance, and people always have the right to move.

  • Devastator||

    a computer can do it in microseconds, humans would take days, and do a shittier job.

  • Diane Reynolds (Paul.)||

    I like the idea that districts could be drawn randomly. I'm sure someone would complain that a computer program doing the re-districting is a white male patriarchal structure, but still.

  • Diane Reynolds (Paul.)||

    Tourism and travel to North Korea comes under increasing scrutiny in the wake of Otto Warmbier's death

    No word on the millions of North Korean deaths and its effect on tourism.

  • Diane Reynolds (Paul.)||

    fack wrong thread.

  • Ron||

    If you make the math make it fair the result would be 50% dem and 50% rep and that also would not be fair but I'm sure the two parties would agree to it as it would protect both houses equally

  • loveconstitution1789||

    I say just decide how many Congressmen a state gets and geometrically divide the state. The last lottery winner who picks is blindfolded and has to point to images with the different divisions. Presto!

  • EscherEnigma||

    You know, all this talk of gerrymandering would poof in a second† if we adopted a form of proportional representation.

    Heck, if we take the 2016 presidential results for California as a proxy for what a proportional state-wide system would look like‡, we'd get 33 Democrats, 17 Republicans, 2 Libertarians and 1 Green. Compared to the actual 39 Democrats and 14 Republicans (0 Libertarians or Greens).

    It's a system where a minority that has at least 1/N of the vote, where N is the number of seats up for grabs, can reliably get represented. Compared to our majority/plurality districts, that empowers folks that might be otherwise disenfranchised.

    Ah well. Wishes, fishes and all that jazz.
    ________
    †Well, at the intra-state level anyway. The states themselves are more effectively gerrymandered then anyone could ever have hoped to get away with designing, but talking about redrawing state lines gets no where.
    ‡An actual proportional system for congress would probably not be state-wide, but just have fewer districts that were "at-large" for 5 or more seats.

  • JFree||

    Proportional just creates a new set of problems - and can also be gerrymandered.

    Getting rid of elections altogether does solve the problem. Draw district lines wherever and however you want. And then use random selection to pick one voter from that district. That's the new incumbent until the next selection. Probably need a much much bigger legislature - closer to 4000 critters than 400. But then again, they won't need 20,000 staffers like the current critters.

  • Qsl||

    I've considered the idea of creating a third house of congress of a few people chosen at random from each state.

    Not comfortable with them being able to write legislation, but let them debate, question, and vote on any legislation. Let them demand clarification from any obtuse dictate from either house. And if 2/3 oppose, give them veto power. Pay them the median wage in the country.

    Give the Senate back to the states, and you have a broader balance of power.

  • JFree||

    I like that idea. Would certainly force simplification and transparency. A Grand Jury that could even be used to audit the executive branch and serve as an ombudsman (or force agencies to create ombudsmen). Not sure it even really needs constitutional authorization (except for the pay and veto piece) since it seems to me that it would be instantly credible to the press as both an institutionalized first amendment and an increasingly knowledgeable sample that quickly approaches the accuracy of polls (100 people = 11% error; 500 = 5% error; 1000 = 3.4% error).

  • EscherEnigma||

    Proportional just creates a new set of problems - and can also be gerrymandered.
    To paraphrase: "Democracy is the worst form of government imagined. Excepting, of course, all the others that have been tried".

    No, nothing is perfect and yes, there will always be ways to game the system. But we can do better then what we're currently doing.

    That said, I've long liked the idea of a third branch of legislature that's basically extended "jury duty". Logistically problematic, but it wouldn't be the worst thing to try.

  • Liberty =><= Equality||

    t's a system where a minority that has at least 1/N of the vote, where N is the number of seats up for grabs, can reliably get represented.

    2 votes out of 53 isn't representing shit.

  • EscherEnigma||

    To be precise, it represents about 3.7% of a population. If Libertarians could repeat that success across the nation, that would be about 20 votes in the House. How many times in the past few years has legislation passed or failed on margins that small?

  • Mickey Rat||

    One of the isdues there is that the Parties control who actually fills the seats. You will not get anything other thsn estsblishment figures from major parties holding office.

  • EscherEnigma||

    There's different ways to do it.

    One is as you describe, where you literally vote for a "party" and the party gets to choose who to appoint to won seats. But that's not the only way.

  • Scarecrow Repair & Chippering||

    My solution has several parts:

    Reps proxy their election votes, not "1". It's trivially more work to set up at the start of each session, and it makes it harder for observers to tally up votes on the fly while they are glad handing and back slapping, but that's just as much a feature. This also eliminates one of the original founding reasons for that damned census.

    Pick the top three vote getters in each district; yes, three times as many reps. Makes it more important to campaign for all the votes you can get, not just a majority. If some district only has one or two candidates, oh well. Actually increases their representation slightly, since more than 3 candidates means some voters won't be represented. Oh well.

    Allow real estate parcel owners who are on a district border to shift districts come election time, if the new district had fewer total votes last election. This is foot voting of a different sort and tends to equalize districts over time.

    The combination eliminates the need to redistrict every census and makes legislative gerrymandering impossible. Districts can still come out wall-eyed and lopsided as parcel owners slip around. Oh well.

  • EscherEnigma||

    You basically just described a variation on proportional voting, with some weirdness about districts thrown in.

  • LarryA||

    Or you could use the first part of the title.

    Abolish districts and give each registered voter one statewide vote.
    Each candidate then signs up voters.
    If the state is authorized 10 representatives, each candidate with a tenth of the votes cast is elected.
    Candidates with less than a tenth, or more than a tenth, can release voters to other candidates, with the voter's consent.

  • Scarecrow Repair & Chippering||

    Interesting idea. Priority voting of a sort, with the candidates controlling the vote shifting instead of the voters having to prioritize candidates, and it only applies to surplus / wasted / unused votes.

  • Liberty =><= Equality||

    That leads to the same problems as abolishing the electoral college does. The campaign just becomes a media blitz in the most densely populated areas of the state, and electoral fraud in one precinct can hand the entire House delegation to one party.

  • EscherEnigma||

    How big are precincts in your state? Even when I was in a town with 10000 or so folks, we had multiple voting precincts.

    That aside, if a single precinct had that much weight, then that's *already* a problem with State-wide races like governor and senators.

  • JFree||

    Can't get rid of gerrymandering unless we can get rid of:

    1. Self-interest among the elected
    2. Reliable predictable voters

  • Restoring the Dream||

    his case could be the biggest one to hit the Court in a generation or more.
    Voting qualifications have always been controlled at the state level, and the civil rights challenges were a huge thing. The Court has been loathe to get into this for Federal reasons. It's going to come down to this: at what point can the overtly process of districting under the "one man-one vote" rubric becomes a non-permissible violation of civil rights, outside the now normal black dilution/packing requirements.

  • Liberty =><= Equality||

    I'm all for replacing the current districting process with algorithms, but the algorithms would have to be extremely simple to make it clear that they are not biased. Something like, divide the state up into "square seconds of lat/lon", then perform a breadth first accumulation starting from the westernmost square of the northernmost line in the state and proceeding to add squares moving east, then south, etc, until you get to the district population. Then start accumulating squares into another district, and so on. You might get weird-shaped districts even with such a simple algorithm, but it would be nearly impossible to game or predict in advance.

    If you have a gazillion parameters computed by supercomputing clusters, the partisans are going to tune them to produce their desired results. You probably wind up with an even worse imbalance then.

  • Liberty =><= Equality||

    Although Democrats won 50.3 percent of the vote in 2012 in North Carolina, they captured only four of the state's 13 seats in the House of Representatives. ... The program devised by Mattingly and Graves creates thousands of randomly drawn district maps. Of those maps, they find that on average 7.6 seats would go to Democrats, compared with the four they actually won.

    Wait, so on average their algorithm gives 7.6 / 13 = 58.4% of the House delegation to the party that won 50.3% of the votes? That's not much better.

    Cho measures how closely a state's existing legislative districts line up with billions of non-partisan maps drawn by her supercomputing cluster. If they diverge significantly, then the people who drew the districts probably had partisan motives for placing the lines where they did, Cho says.

    Using what metric for "how closely... districts line up"? That's not a straightforward thing to define, and can be gamed till the cows come home; if political power depends on it you can bet that definition will be gamed for partisan purposes.

    In three of the districts drawn by the Republican-dominated legislature, voters were more than three-quarters Democrat

    Democrats are far more likely to live in densely populated areas, so it makes sense that nearly any geography-based division is going to "pack" them.

  • Devastator||

    It can't be gamed like letting politicians pick the system though, because there are efficiency factors based on how people voted that call out obvious failures in districts, unlike when humans who are in the majority party are picking out districts.

  • Liberty =><= Equality||

    Another problem with the Mattingly-Graves study is that it treats the various House candidates of the same party as being interchangeable, which is not entirely true. If a district from their random map covers land that in reality is part of District 1 and District 2, they're assuming that all the voters in the hypothetical district would vote for the same party they did in reality. But that's unlikely; the real candidates in the two real districts might be very different.

  • Devastator||

    Great article. Thanks for not being a whiny partisan to the author. Unlike a lot of the commentators, you are on point.

  • Migrant Log Chipper||

    You mean commentators like YOU.....lmao.

  • John C. Randolph||

    Eliminating gerrymandering will mean that the Democrats' precious "minority majority" districts will vanish.

    -jcr

  • Mickey Rat||

    Gee, I wonder if people are "looking into this issue" now because the GOP controls most state legislatures and that does not seem to be changing anytime soon?

    It did not seem to be a problem.whem the Democrats were not on the short end of the stick.

  • Mickey Rat||

    Also, in the recent SCOTUS districting case in North Carolina, is it not long accepted judicial precedent that partisan gerrymandering is not Constitutionally prohibited no matter how unsavory the practice is?

  • CptNerd||

    Since the Constitution completely ignores political parties, and since gerrymandering is based primarily on party affiliation of voters, I wonder if the Supreme Court will declare the practice unconstitutional at all. Seems like it could, if the gerrymandering was based on any of the other non-discrimination aspects of the voters such as race or religious belief.

  • damikesc||

    Wonder why this is an issue only when Democrats lose the power to draw the lines...

  • JFree||

    It isn't. An article from 1988 - http://lat.ms/2sQbFaN - Reps looking for the SC to declare Dem gerrymandering of CA unconstitutional.

    It is very consistent. Both parties - and every asshole who votes for them - are nothing but whiny entitled children who want the court to approve their tantrums and their cheating.

  • damikesc||

    Want to win more seats?

    Maybe Progressives should try moving out of the cities. When you decide to concentrate in a small area, you'll lose some influence in a district-by-district basis.

  • Steven L||

    "Consider that the percent of voters whose state senators and legislators ran unopposed increased respectively from 11.3 and 22.2 percent in 1973 to 32.8 and 40.4 percent in 2014." is misleading using cherry picked data. If you click the link it is not obvious unopposed races are rising, and they are clearly not rising by a factor of 2 - 3 as the two data points selected imply.

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