2016 Election Results Prove Gerrymandering
State election totals by ward prove the problem again. How will courts react?
At the time the judges were considering the case, they had results from two state-wide elections using assembly districts created as the result of the 2010 census: the presidential election of 2012 and the governor’s election of 2014. Since the decision was issued and my previous article on gerrymandering was published, the Wisconsin Elections Commission has published presidential election results broken down by individual wards. Thus it is possible to calculate which presidential candidate won each assembly district and how skewed those districts are.
A basic test of political fairness is symmetry; if the bar is set at a certain level for one party to get a certain result, to the extent possible it should not be set at a much higher level or lower level for the other party. As with the 2012 and 2014 election results, 2016’s result show a remarkable asymmetry. For example, to win 50 seats, a majority, Republicans need about 45 percent of the votes. But Democrats need 55 percent of the vote to gain a majority.
The chart below shows the estimated seat counts for each party based on the 2016 results (solid line), as well as 2012 and 2014. Wisconsin elections are typically won and lost with differences of a percentage or two. In this range, the Republican advantage (red lines) is overwhelming and persistent as the judges determined: at 45 percent of the vote the GOP won 50 of 99 seats, at 50 percent they won 60 or more seats, at 55 percent they won about 70 seats in the three elections.
One reason the Supreme Court justices have hesitated to rule against gerrymanders is a fear that uncertainty about how to measure the inequity would plunge courts into a sea of possibly inconsistent rulings. The plaintiffs challenging the Wisconsin gerrymander thus suggested the “efficiency gap” as a mathematical tool to measure the asymmetry of the redistricting. It is based on the concept of “wasted votes”—those supporting a losing candidate and those that were unneeded because the candidate already had enough votes to win. The strategy behind partisan gerrymandering is to make sure the other party has the most wasted votes.
The efficiency gap calculates whether one or the other party has a substantially greater proportion of wasted votes. Under that analysis, a negative efficiency gap favors Republicans; a positive one favors Democrats. Generally, gaps of more than plus or minus 7 percent are considered strongly indicative of deliberate partisan gerrymandering.
As the next chart shows, over the past three state-wide elections, the efficiency gap has been worse than -7 percent in the range that Wisconsin elections are fought. Efficiency gaps calculated from all three elections since the 2011 redistricting are remarkably consistent with one another and strongly favorable to the election of Republicans.
The basic strategy behind creating a partisan gerrymandering is called “packing and cracking.” Packing is the process of adding voters from the other party to districts that already have an overwhelming majority of that party’s voters. By removing these voters from districts in the middle, the number of districts favoring one’s own party can be increased or made safer.
The frequency diagram below shows the classic cracking and packing symptoms. The long blue Democratic tail on the right results from packing Democratic voters into heavily (more than 60 percent) Democratic districts. The red peak of the many districts between 50 percent and 60 percent Republican reflects cracking of districts that previously had small Democratic majorities, were evenly split, or had small Republican majorities: now all have solid GOP majorities.
The 2016 results help confirm—if any confirmation was needed—the court’s conclusion that the Wisconsin districts are the result of deliberate gerrymandering. The consistency of the results over three elections should reassure judges who fear they will make decisions based on calculations from one election only to have the evidence underlying those calculations disappear in subsequent elections.
What is likely to come next? Both sides have submitted briefs advocating what the court next step should be.
Wisconsin Attorney General Brad Schimel, arguing for the defendants, advocates that “the Court should therefore enter an injunction (that) directs the Legislature to devise a new plan.”
But then he argues that the judges should wait for the Supreme Court to rule: “The real issue with respect to remedy is the timing of when a legislative alternative should be presented. Given the uncertain nature of the law on partisan gerrymandering, the Court should not require a revised plan until after the Supreme Court has ruled on the case. “
Essentially, Schimel’s argument is that it would be inefficient for the legislature to devise a new plan in case the Supreme Court were to disagree with the panel of judges.
The plaintiffs propose several possible scenarios. Their preferred choice is not allowing the state first crack at coming up with new districts. They advance two reasons for this. The first is that the legislature’s record of devising the previous plan is so poor there is no reason to expect they would do better in a second try.
They also turn a previous argument by the state against the state. In a previous case (“Baldus”), the state argued that language in the Wisconsin constitution allowing one redistricting every 10 years prohibited the legislature from revising its districts.
The plaintiffs further argue that “If the court does allow Wisconsin’s elected branches to try to design a valid remedy, it should give them a strict deadline and detailed instructions.” They then lay out a suggested schedule aimed at having new districts available in time for the 2018 election. This would include a deadline for the legislature to develop a new plan, time to evaluate it, and, in case the plan was unsatisfactory, time for the judges to develop a substitute plan.
In essence, new districts would have to be in place when candidates start collecting signatures on April 15, 2018.
Lawyers for each side now have an opportunity to critique the other side’s proposal before the court decides on the next step.
It is always risky to predict what judges will decide. Still, I think it unlikely they will agree to Schimel’s proposal. Part of the problem is timing: Schimel’s proposals offers no assurance that a revised districting plan would be available in time for the next legislative election in 2018. More seriously, the effect of his proposal would be to convert the judges’ decision into a brief to the Supreme Court, communicating a lack of confidence in their own decision and openly inviting a reversal. Why would the judges want to do that?