You think you’ve seen the worst results of Hillary Clinton’s loss to Donald Trump last November?
No, friends, there may be worse horrors yet to come in the fall. That’s when the U.S. Supreme Court is likely to take up oral arguments in Gill v. Whitford, the Wisconsin redistricting case.
In that case, Democrats argue that their voters have been unconstitutionally disenfranchised because of partisan gerrymandering. A lower court agreed and ordered the maps redrawn. The Republicans appealed to the Supreme Court and the court announced Monday that it had agreed to take the case. It’s likely it will be argued soon after the court returns in October with a decision, possibly, soon after but no later than next June.
Court watchers have said that the justices are probably split down the middle with Justice Anthony Kennedy being the swing vote. In a 2004 decision Kennedy indicated that he could be persuaded that a partisan gerrymander went too far, but that there wasn’t any constitutional measuring stick for how to define where the line is crossed.
So, the plaintiff’s lawyers and experts in this case — which include Madison lawyer Doug Poland and UW political scientist Ken Mayer — have provided the court with that measure. It’s called an “efficiency gap” and it counts how many votes are “wasted” in any given district.
The only statistically valid way to arrive at the “efficiency gap” is to take into account the entire state. But to illustrate how the math works, let’s take two actual Assembly districts from last fall’s election. The first district was “packed” (to use the experts’ terminology) with Democratic votes. This is Assembly District 76 on Madison’s east side. There Democrat Chris Taylor won 83 percent of the vote or 33,628 votes. Her Republican opponent got almost 17 percent or 6,877 votes. So, of the 40,505 total votes cast (to simplify things I didn’t include write-ins), every vote above the minimum needed to win (20,253) is wasted. So in the 76th that would be 13,375 wasted Democratic votes. And all of the Republican votes (6,877) were wasted.
Now, let’s take the other extreme, a district that was “cracked” to provide a comfortable, but not overwhelming, margin for the Republican. In this case, we’ll pick Assembly District 49 around Cuba City. That race was won by Republican Travis Tranel who received 57 percent of the vote or 15,056 votes compared to the Democrat’s 43 percent or 11,344 votes. In this case, all of those Democratic votes were wasted and all of the Republican votes above those needed to win (1,855) were wasted.
So, in these two districts a total of 24,719 Democratic votes and 8,732 Republican votes were wasted. Under the formula we subtract the Republican wasted votes from the Democrats’ wasted votes to get a difference of 15,987 more Democratic- than Republican-wasted votes. We then divide that by the total votes cast in both districts, or 66,905 votes, to yield an “efficiency gap” of 24 percent. In other words, these two districts are packed and cracked in a way that wastes about 24 percent more Democratic than Republican votes.
When the experts performed this test over all 99 Assembly districts in two elections after the Republican gerrymander, they came up with a 13.3 percent overall efficiency gap for the 2012 election and a 9.6 percent gap for 2014, both benefiting the GOP. They argue that 7 percent is the maximum tolerable gap based on the idea that that is as much as is likely to endure over a 10- year election cycle, which is the life of a district between the latest census and redistricting. And, of course, in a perfect world of absolutely fair districts, the gap would be 0 percent, meaning that as many Republican as Democratic votes would be wasted.
Ok, so maybe that was more wonking out than you needed, but thanks for humoring me. Here’s the raw political point: If Clinton had won she would have appointed a justice that almost certainly would have seen the value in this reasoning, providing the fifth vote needed to overturn the Wisconsin gerrymander. The result would have been that in November 2018, with more fair districts in place and a Democratic wave set to take hold, there would be an excellent chance that at least one, if not both houses of the state Legislature, would flip back to Democratic control. Combine that with a defeat of Gov. Scott Walker and the turn of events — and the chances for all kinds of policy improvements — is breathtaking.
Instead, with Trump’s pick, Justice Neil Gorsuch, almost certain to side with the conservatives, the decision will likely come down to Justice Anthony Kennedy. But Kennedy is 80 and said to be considering retirement. Moreover, the hope that he might break to the liberals is based on something he wrote 13 years ago. To make matters worse, he sided with conservatives in granting a stay, requested by Wisconsin Attorney General Brad Schimel, to stop the lower court ruling that had required Assembly Republicans to deliver a new map by November of this year. That could be an indication that Kennedy isn’t as open to arguments about partisan gerrymandering as he once was.
This case has implications beyond Wisconsin because it would establish a standard to measure when partisan gerrymandering goes too far in any state.
But more fundamentally, it has the potential to restore public confidence in our system of government. Hillary Clinton lost Wisconsin by 22,000 votes. She received 46.45 percent of the vote to Donald Trump’s 47.22 percent. And yet, the Republicans control the state Assembly with 63 of 99 seats or 63 percent of the body. A state that is just a hair more Republican has a Legislature that is overwhelmingly so and that is a prescription for disaster because the will of the people is not being played out in its public policy.
We are so close to turning this around, but if Justice Kennedy retires, or has changed his mind in the last 13 years, we may find that Clinton’s defeat was even more bitter than we could have imagined.
