Gerrymandering Is Built on Lies
Which is why the North Carolina plan was overruled. Wisconsin’s is very similar.
The title of associate US Supreme Court Justice Neil Gorsuch’s recently issued book echoes Benjamin Franklin’s supposed answer to a woman who asked what the Constitutional Convention had adopted: “A Republic, If You Can Keep It.” This suggests that Gorsuch thinks that our republican form of government is important. Yet in joining the 5-4 majority that voted in favor of allowing partisan gerrymanders, Gorsuch voted against one of the crucial underpinnings of democracy, allowing citizens to choose their leaders.
Two recent court decisions about gerrymandering in North Carolina dealt with a very similar set of facts, but came to very different conclusions. In each, Common Cause and others challenged redistricting plans written by Republican legislators to guarantee that Republicans would win a majority of seats even while losing the popular vote.
The first case, Rucho v. Common Cause, challenged redistricting of North Carolina’s US House seats in federal courts (and a Democratic gerrymander in Maryland). The second, Common Cause v. Lewis, challenged the Legislature’s redistricting of itself in the state courts.
Despite their similarities the two cases had very different outcomes. Writing for a 5-4 majority US Chief Justice John Roberts concluded that the federal courts had no business interfering with gerrymandering schemes. In doing so, Roberts and his colleagues killed the challenge to Wisconsin’s Republican gerrymander.
In the other case a three-judge state panel gave the North Carolina Legislature two weeks to create districts in which “partisan considerations and election results data shall not be used.”
Despite conceding that “these cases involve blatant examples of partisanship driving districting decisions,” Roberts concluded that the federal judiciary had no role to play.
… we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.
Roberts goes on to reassure those concerned about democracy that “our conclusion does not condone excessive partisan gerrymandering” and does not “condemn complaints about redistricting to echo into a void.” But he offers no remedy, instead suggesting that state courts or legislation introduced in Congress repeatedly but unsuccessfully might solve the problem.
Article IV, Section 4 of the US Constitution, the so-called “Guarantee Clause,” states that the “United States shall guarantee to every State in this Union a Republican Form of Government.” Contrary to the apparent belief of Republican legislators in North Carolina (and Wisconsin), this does not require state governments dominated by the Republican Party. According to the (very conservative) Heritage Foundation, this requires three elements–popular rule, no king, and the rule of law. By allowing those in power to entrench themselves, gerrymandering undermines at least the first of these.
In its 357-page decision the North Carolina panel of trial court judges takes a very different route:
The issue before the Court is distilled to simply this: whether the constitutional rights of North Carolina citizens are infringed when the General Assembly, for the purpose of retaining power, draws district maps with a predominant intent to favor voters aligned with one political party at the expense of other voters, and in fact achieves results that manifest this intent and cannot be explained by other non-partisan considerations.
It finds that the General Assembly had a partisan intent to create legislative districts that perpetuated a Republican-controlled General Assembly, that it deployed this intent with “surgical precision” to use packing and cracking to dilute Democratic voters’ collective voting strength, that partisan intent predominated over all other redistricting criteria, and that the effect of these maps is that, in all but the most unusual election scenarios, the Republican party will control a majority of both chambers of the General Assembly.
Quoting the US Supreme Court’s observation that “state constitutions can provide standards and guidance for state courts to apply,” the North Carolina court proceeds to decide the case based on the North Carolina constitution. Noting that Section 10 of the state constitution requires that “all elections shall be free, it goes on:
This Court further concludes that the 2017 Enacted Maps are tainted by an unconstitutional deprivation of all citizens’ rights to equal protection of law, freedom of speech, and freedom of assembly.
In contrast to the indifference that Roberts and company show to measuring partisan intent, the state judges do a deep dive into statistics. Figure 5, reproduced below, is an example. North Carolina law, like many other states including Wisconsin, requires that map makers minimize the splitting of political units. Jowei Chen of the Department of Political Science at the University of Michigan used mapping software to generate 1,000 district plans based on non-partisan criteria. As can be seen, the adopted plan splits far more municipalities than would be expected. In other words, in order, to make the plan so favorable to Republicans, the map-makers had to do violence to the principle of keeping together people in the same town.
Compactness is another common requirement, including in North Carolina and Wisconsin. There are a number of formulas of measuring compactness, but they generally operate by comparing the area enclosed to the length of its boundary. Two commonly used measures are the Polsby-Popper and Reock compactness scores. Using either formula, a circle—the most compact possible shape—earns a score of one. The less compact a shape is, the smaller its score.
Figure 4, also by Chen, plots the average compactness using the two measures—the Polsby-Popper on the vertical scale and the Reock on the horizontal. The 2017 House Plan (in red on the lower left) is compared using the two measures to the compactness in the 1,000 computer-generated plans (the cloud on the upper right). Again, the House Plan is an extreme outlier, demonstrating the amount of compactness its designers had to sacrifice to gain the plan’s Republican advantage.
As already noted, the North Carolina decision comes from a panel of trial judges, not the state’s supreme court. Theoretically, then, the Republican legislators could appeal it, but they have announced that they will not. Why? Speculation is that they fear losing the appeal, and that such a decision could become a precedent for a state challenge to the Republican gerrymander of the state’s congressional delegation.
The North Carolina judges note that defenders of the gerrymander lied to them:
The Court is troubled by representations made by Legislative Defendants, or attorneys working on their behalf, in briefs and arguments … and to General Assembly colleagues at committee meetings that affirmatively stated that no draft maps had been prepared even as late as August 4, 2017.
This pretense was punctured when Republican consultant Thomas Hofeller died, and his files were leaked. Among other disclosures were the records of his extensive work making the North Carolina plan as Republican-favorable as possible.
This pattern of lying to judges seems to be a pattern among gerrymander defenders. The North Carolina judges point to the contradictory testimony of Thomas Brunell, a Republican expert witness. His argument defending the North Carolina plan contradicted his testimony in Nevada attacking a plan passed by Democrats.
Lying was also associated with Wisconsin’s gerrymander. Under Gov. Scott Walker and Attorney General Brad Schimel, the state’s brief falsely claimed that the bias against Democrats was a byproduct of Democrats’ tendency to live in cities. The evidence showed otherwise, especially when a hard drive was recovered that showed a series of draft plans, each more Republican-friendly than the last.
Chief Justice John Roberts’ decision in Rucho is particularly unfortunate coming at a time when federal district courts were becoming increasingly comfortable with protecting democracy by invalidating gerrymanders. Before Roberts’ decision, the courts ruled against gerrymanders in Maryland, Michigan, North Carolina, Ohio and Wisconsin. No court upheld them.
North Carolina joins Florida and Pennsylvania where state courts ruled against gerrymandering based on provision of their state constitution. Could Wisconsin follow suit? Our constitution lacks the “equal protection” and “free election” clauses similar to North Carolina’s. But it does refer to “governments … deriving their just powers from the consent of the governed.” And Section 22, Maintenance of free government. notes that “The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”
A state supreme court committed to democratic government, could use these to ban gerrymandering. Unfortunately, there is no reason to expect that the present Wisconsin Supreme Court will move beyond partisanship based on its recent decisions.
Another route against Wisconsin gerrymandering could rest on the constitution’s requirements for districts:
such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.
As in North Carolina, the Wisconsin gerrymander sacrificed compactness and divided communities on the altar of partisan advantage. The following graph, taken from Chen’s amicus brief in the challenge to the Wisconsin gerrymander, plots the number of intact counties on the vertical scale against the average compactness on the horizontal. The red circles show the values for 200 computer generated plans. The results of Act 43 are shown at the lower left, again showing the Republican plan is an extreme outlier
Unfortunately, with the US Supreme whiffing on gerrymandering and the Wisconsin Supreme Court dominated by partisan hacks, the 2020 election becomes all the more important.
More about the Gerrymandering of Legislative Districts
- Legislation on redistricting ballot issue moves forward - Ald. Cavalier “Chevy” Johnson - Sep 17th, 2019
- Data Wonk: Gerrymandering Is Built on Lies - Bruce Thompson - Sep 12th, 2019
- Data Wonk: The Future of Wisconsin Gerrymandering - Bruce Thompson - Aug 14th, 2019
- Republicans Deny New Gerrymander Plan - Ruth Conniff - Jul 30th, 2019
- GOP Could Bypass Evers, Gerrymander Again - Ruth Conniff - Jul 29th, 2019
- Op Ed: The Game is Rigged in Wisconsin - Spencer Black - Jul 21st, 2019
- Gerrymandering Foes Push Reform - Erik Gunn - Jul 17th, 2019
- Rep. Robyn Vining Continues Fight for Fair Maps - State Rep. Robyn Vining - Jul 16th, 2019
- Statement on Nonpartisan Redistricting Reform Bill - State Rep. Lisa Subeck - Jul 16th, 2019
- Gerrymandering Bill is Bipartisan - Laurel White - Jul 12th, 2019
- Op Ed: Redistricting Now Up to Citizen Action - Jay Heck - Jul 2nd, 2019
- Rep. Robyn Vining Says Fight for Fair Maps Is Not Over - State Rep. Robyn Vining - Jun 28th, 2019
- U.S. Supreme Court Allows Gerrymandering - Laurel White - Jun 28th, 2019
- Statement on U.S. Supreme Court decision on Partisan Gerrymandering - Fair Elections Project - Jun 27th, 2019
- Waupaca County Opposes Gerrymandering - Matt Rothschild - Apr 29th, 2019
- 45 Counties Want to Ban Gerrymandering - Wisconsin Democracy Campaign - Apr 19th, 2019
- Data Wonk: Walker Seeks to Gerrymander America - Bruce Thompson - Apr 3rd, 2019
- Murphy’s Law: The Arrogance of Robin Vos - Bruce Murphy - Mar 21st, 2019
- Data Wonk: The Gerrymander Wars March On - Bruce Thompson - Mar 20th, 2019
- The State of Politics: How Evers Would End Gerrymandering - Steven Walters - Mar 18th, 2019
- Evers’ Budget Will Include Nonpartisan Redistricting Process - Shawn Johnson - Feb 27th, 2019
- Representative Subeck Applauds Governor Evers’ Plan to Ensure Fair Election Maps - State Rep. Lisa Subeck - Feb 26th, 2019
- Rep. Hesselbein Supports Governor Evers’ Fair Maps Plan - State Rep. Dianne Hesselbein - Feb 26th, 2019
- Rep. Spreitzer Supports Gov. Evers’s Redistricting Reform - State Rep. Mark Spreitzer - Feb 26th, 2019
- Statement on Governor Evers’ announcement he will include nonpartisan redistricting reform in his proposed budget - Wisconsin Fair Elections Project - Feb 26th, 2019
- Rep. Robyn Vining Embraces Gov. Evers’ Inclusion of Redistricting in Budget - State Rep. Robyn Vining - Feb 26th, 2019
- Op Ed: Why We Oppose Gerrymandering - Andrea Kaminski - Feb 20th, 2019
- Murphy’s Law: Republicans Oppose Gerrymandering - Bruce Murphy - Jan 29th, 2019
- Op Ed: Gerrymandering Costs Taxpayers Millions - James Rowen - Jan 23rd, 2019
- Data Wonk: Gerrymander is Alive and Well - Bruce Thompson - Dec 12th, 2018
- Board Adopts Supervisor Moore Omokunde Proposal to Decriminalize Marijuana - Sup. Supreme Moore Omokunde - Nov 6th, 2018
- Murphy’s Law: The Fight Against Gerrymandering - Bruce Murphy - Oct 30th, 2018
- Democrats Refile Redistricting Suit - Shawn Johnson - Sep 16th, 2018
- Amended Whitford Complaint Highlights Harm Caused by Wisconsin’s Partisan Gerrymander to 40 Plaintiffs Across 34 Districts - Campaign Legal Center - Sep 14th, 2018
- The State of Wasted Votes - Malia Jones - Jul 2nd, 2018
- Data Wonk: Can Democrats Still Contest Gerrymander? - Bruce Thompson - Jun 27th, 2018
- The State of Politics: Democrats Rejected Redistricting Reform - Steven Walters - Jun 25th, 2018
- Supreme Court Punts on Gerrymandering - Shawn Johnson - Jun 18th, 2018
- Republican State Leadership Committee: The Efficiency Gap is “Sociological Gobbledygook” - Republican State Leadership Committee - Jun 18th, 2018
- Response to Gill v Whitford decision to remand back to trial court - Fair Elections Project - Jun 18th, 2018
- The Art Of Gerrymandering Milwaukee - Malia Jones - Jun 9th, 2018
- The Push for Nonpartisan Redistricting - Cathleen Draper - Jun 5th, 2018
- U.S. Supreme Court Nears Decision on Wisconsin Redistricting Case - Cathleen Draper - Jun 2nd, 2018
- Data Wonk: Many Republicans Oppose Gerrymandering - Bruce Thompson - Mar 14th, 2018
- The State of Politics: Will U.S. Supremes Rule on State Districts? - Steven Walters - Feb 19th, 2018
- Back in the News: Majority Now Backs Fair Redistricting - Bruce Murphy - Feb 5th, 2018
- Data Wonk: John Roberts’ Nightmare - Bruce Thompson - Oct 11th, 2017
- The State of Politics: You Be The Judge on Redistricting - Steven Walters - Oct 2nd, 2017
- Op Ed: U.S. Supreme Court Should End Partisan Gerrymandering - Andrea Kaminski - Sep 26th, 2017
- Data Wonk: Judges Consider a Democratic Gerrymander - Bruce Thompson - Aug 30th, 2017
- Op Ed: 24 Counties Have Voted for Fair Maps - Matt Rothschild - Aug 25th, 2017
- Data Wonk: Right Wing Seeks to End Democracy? - Bruce Thompson - Aug 23rd, 2017
- Data Wonk: US Supreme Court Wrong on Redistricting? - Bruce Thompson - May 31st, 2017
- Op Ed: Save Taxes With Nonpartisan Redistricting - Andrea Kaminski and Lindsay Dorff - May 26th, 2017
- Data Wonk: Why GOP Backs Gerrymander - Bruce Thompson - May 24th, 2017
- Data Wonk: State’s Political Map At Issue - Bruce Thompson - May 18th, 2017
- Rep. Peter Barca Statement on Attorney General Appeal of Redistricting Decision - State Rep. Peter Barca - Feb 24th, 2017
- Fair Elections Project calls upon Legislature to focus on fair map drawing process - Wisconsin Fair Elections Project - Feb 24th, 2017
- Campaign Cash: GOP’s Redistricting Lawyers Are Big Donors - Matt Rothschild - Feb 6th, 2017
- Op Ed: Reject Partisanship, Redraw Voting Maps - Andrea Kaminski - Feb 3rd, 2017
- Rep. Peter Barca Statement on Assembly Organization Committee Secret Ballot - State Rep. Peter Barca - Feb 2nd, 2017
- Court Watch: Court’s Redistricting Order A Problem? - Bruce Thompson - Feb 1st, 2017
- Rep. Hesselbein Calls for Open, Transparent, and Public Process for Drawing New Legislative Lines - State Rep. Dianne Hesselbein - Jan 27th, 2017
- Wisconsin Federal Court Permanently Blocks State Redistricting Plan - Wisconsin Fair Elections Project - Jan 27th, 2017
- Data Wonk: 2016 Election Results Prove Gerrymandering - Bruce Thompson - Dec 28th, 2016
- Plaintiffs call for new maps for Wisconsin legislative district - Wisconsin Fair Elections Project - Dec 21st, 2016
- Data Wonk: Measuring Wisconsin’s Gerrymandering - Bruce Thompson - Dec 7th, 2016
- Sen. Taylor statement on federal court ruling against Republican gerrymandering - State Sen. Lena Taylor - Nov 21st, 2016
- Statement on Redistricting Ruling - State Sen. Chris Larson - Nov 21st, 2016
- Federal Court overturns unconstitutional gerrymandering of Wisconsin legislative districts - Wisconsin Fair Elections Project - Nov 21st, 2016
- Rep. Barca Statement on Redistricting Decision - State Rep. Peter Barca - Nov 21st, 2016
- HISTORIC DECISION: Wisconsin Federal Court Strikes Down Partisan Gerrymander and Adopts Groundbreaking Legal Standard - Campaign Legal Center - Nov 21st, 2016
- Murphy’s Law: The Myth of Democratic Gerrymandering - Bruce Murphy - Jan 26th, 2016
- Data Wonk: Can New Approach End Gerrymandering? - Bruce Thompson - Jan 6th, 2016
- Federal Lawsuit to Overturn Unconstitutional Gerrymandering of Wisconsin Legislative Districts Continues - Wisconsin Fair Elections Project - Dec 17th, 2015
- Can Auto Redistricting End Gerrymandering? - Laura Thompson - Dec 10th, 2015
- Assembly candidate Brostoff calls for non-partisan redistricting - State Rep. Jonathan Brostoff - Apr 17th, 2014
- Redistricting reform the antidote to Republican extremism - Press Release - Nov 13th, 2013
- Lazich, August, Fitzgerald and Vos Still Silent on Redistricting Reform Public Hearings As Support & Pressure Builds - Common Cause in Wisconsin - Sep 17th, 2013
- Freshmen legislators push new legislation to correct flawed partisan redistricting process - Press Release - Apr 11th, 2013