NY Times re court on Wisconsin gerrymander; "efficiency formula" sways court
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Warren D Smith
Nov 22, 2016, 2:17:50 PM11/22/16
to electionscience
Judges Find Wisconsin Redistricting Unfairly Favored Republicans
NY Times, by MICHAEL WINES 21 Nov 2016
(And Doris Burke contributed research)
---------
A panel of three federal judges said on Monday that the Wisconsin
Legislature’s 2011 redrawing of State Assembly districts to favor
Republicans was an unconstitutional partisan gerrymander, the first
such ruling in three decades of pitched legal battles over the issue.
Federal courts have struck down gerrymanders on racial grounds, but
not on grounds that they unfairly give advantage to a political party
-- the more common form of gerrymandering. The case could now go
directly to the Supreme Court, where its fate may rest with a single
justice, Anthony M. Kennedy, who has expressed a willingness to strike
down partisan gerrymanders but has yet to accept a rationale for it.
Should the court affirm the ruling, it could upend the next round of
state redistricting, in 2021, for congressional and state elections
nationwide, most of which is likely to be conducted by
Republican-controlled legislatures that have swept into power in
recent years.
"It is a huge deal," said Heather Gerken, a Yale Law School professor
and an expert on election law. “For years, everyone has waited for the
Supreme Court to do something on this front. Now one of the lower
courts has jump-started the debate.
"If this were to be a nationwide standard, 2021 would look quite
different,” she said, "especially for the Democrats."
Several election-law scholars said the ruling was especially
significant because it offered, for the first time, a clear
mathematical formula for measuring partisanship in a district,
something that had been missing in previous assaults on
gerrymandering.
The 2-to-1 ruling by the United States District Court for the Western
District of Wisconsin said that the Legislature’s remapping violated
both the First Amendment and the Equal Protection Clause of the 14th
Amendment because it aimed to deprive Democratic voters of their right
to be represented. "Although Wisconsin’s natural political geography
plays some role in the apportionment process," the court wrote, "it
simply does not explain adequately the sizable disparate effect" of
Republican gains in the State Assembly after the boundaries were
redrawn.
The judges who ruled in favor of the plaintiffs, Kenneth Ripple and
Barbara Crabb, were nominated to the bench by Presidents Ronald Reagan
and Jimmy Carter. Judge William Griesbach, nominated by President
George W. Bush, dissented.
The boundaries of both federal and state legislative districts are
redrawn every 10 years after the census to ensure that each district
contains roughly the same number of people, a standard the Supreme
Court set with its one-person-one-vote ruling in 1962.
But both Republican and Democratic majorities in statehouses often
remap districts to favor themselves, either by cramming opposition
voters into a single district or by dividing them so they are the
majority in fewer districts, tactics called "packing and cracking."
Courts have generally agreed that some partisan advantage in
redistricting is tolerable, in part because voters themselves are not
spread equally across a state or district by party. But the plaintiffs
in the case, 12 state Democrats represented by the Campaign Legal
Center, had argued that the Wisconsin remapping was among the most
sharply partisan in the nation.
Their lawsuit said that in the 2012 elections for the Assembly,
Wisconsin Republicans won 48.6 percent of the two-party vote but took
61 percent of the Assembly’s 99 seats.
A key question in Monday’s ruling, as in past challenges to
redistricting, was whether that division was unacceptably partisan, a
question that previous courts have stumbled over.
"Nobody has come up with a standard to measure constitutionality --
how to distinguish between malevolent, evil partisanship that’s
manipulative, versus the natural advantage one party might have as a
result of where voters happened to live," said Edward Foley, the
director of the Election Law Project at Ohio State University’s Moritz
College of Law.
In Monday's ruling, the court was swayed by a new and simple
mathematical formula to measure the extent of partisan gerrymandering,
called the efficiency gap. The formula divides the difference between
the two parties' "wasted votes" -- votes beyond those needed by a
winning side, and votes cast by a losing side -- by the total number
of votes cast. When both parties waste the same number of votes, the
result is zero -- an ideal solution. But as a winning party wastes
fewer and fewer votes than its opponent, its score rises.
A truly efficient gerrymander spreads a winning party's votes so
evenly over districts that very few votes are wasted. A review of four
decades of state redistricting plans concluded that any party with an
efficiency gap of 7 percent or more was likely to keep its majority
during the 10 years before new districts were drawn.
In Wisconsin, experts testified, Republicans scored an efficiency gap
rating of 11.69 percent to 13 percent in the first election after the
maps were redrawn in 2011.
Some experts said the efficiency gap gives gerrymandering opponents
their most promising chance yet to persuade a majority of the Supreme
Court to limit partisan redistricting.
"It does almost exactly what Justice Kennedy said he was looking for
back in the ’80s, a clear threshold for deciding what is acceptable,"
said Barry C. Burden, the director of the Elections Research Center at
the University of Wisconsin-Madison.
Under procedural rules, cases like redistricting lawsuits that are
heard by three-judge panels in District Court are appealed directly to
the Supreme Court, skipping the Federal Court of Appeals. But it
remains unclear whether Wisconsin will file an appeal or accept the
ruling and limit its impact to a single state.
Were the Supreme Court to hear the case, the effect could be profound,
regardless of the decision. Republicans have more than doubled their
control of state legislatures since 2010, and with gains from this
month’s election they now control both legislative chambers in a
record 32 states -- 33 if Nebraska, which has a nominally nonpartisan,
unicameral legislature, is included.
Nicholas Stephanopoulos, a University of Chicago law professor and the
lead lawyer for the plaintiffs, said on Monday that a number of state
redistricting plans, including those in Virginia, North Carolina and
Michigan, have efficiency gap scores rivaling those of Wisconsin.
--
Warren D. Smith
http://RangeVoting.org <-- add your endorsement (by clicking
"endorse" as 1st step)
NY Times, by MICHAEL WINES 21 Nov 2016
(And Doris Burke contributed research)
---------
A panel of three federal judges said on Monday that the Wisconsin
Legislature’s 2011 redrawing of State Assembly districts to favor
Republicans was an unconstitutional partisan gerrymander, the first
such ruling in three decades of pitched legal battles over the issue.
Federal courts have struck down gerrymanders on racial grounds, but
not on grounds that they unfairly give advantage to a political party
-- the more common form of gerrymandering. The case could now go
directly to the Supreme Court, where its fate may rest with a single
justice, Anthony M. Kennedy, who has expressed a willingness to strike
down partisan gerrymanders but has yet to accept a rationale for it.
Should the court affirm the ruling, it could upend the next round of
state redistricting, in 2021, for congressional and state elections
nationwide, most of which is likely to be conducted by
Republican-controlled legislatures that have swept into power in
recent years.
"It is a huge deal," said Heather Gerken, a Yale Law School professor
and an expert on election law. “For years, everyone has waited for the
Supreme Court to do something on this front. Now one of the lower
courts has jump-started the debate.
"If this were to be a nationwide standard, 2021 would look quite
different,” she said, "especially for the Democrats."
Several election-law scholars said the ruling was especially
significant because it offered, for the first time, a clear
mathematical formula for measuring partisanship in a district,
something that had been missing in previous assaults on
gerrymandering.
The 2-to-1 ruling by the United States District Court for the Western
District of Wisconsin said that the Legislature’s remapping violated
both the First Amendment and the Equal Protection Clause of the 14th
Amendment because it aimed to deprive Democratic voters of their right
to be represented. "Although Wisconsin’s natural political geography
plays some role in the apportionment process," the court wrote, "it
simply does not explain adequately the sizable disparate effect" of
Republican gains in the State Assembly after the boundaries were
redrawn.
The judges who ruled in favor of the plaintiffs, Kenneth Ripple and
Barbara Crabb, were nominated to the bench by Presidents Ronald Reagan
and Jimmy Carter. Judge William Griesbach, nominated by President
George W. Bush, dissented.
The boundaries of both federal and state legislative districts are
redrawn every 10 years after the census to ensure that each district
contains roughly the same number of people, a standard the Supreme
Court set with its one-person-one-vote ruling in 1962.
But both Republican and Democratic majorities in statehouses often
remap districts to favor themselves, either by cramming opposition
voters into a single district or by dividing them so they are the
majority in fewer districts, tactics called "packing and cracking."
Courts have generally agreed that some partisan advantage in
redistricting is tolerable, in part because voters themselves are not
spread equally across a state or district by party. But the plaintiffs
in the case, 12 state Democrats represented by the Campaign Legal
Center, had argued that the Wisconsin remapping was among the most
sharply partisan in the nation.
Their lawsuit said that in the 2012 elections for the Assembly,
Wisconsin Republicans won 48.6 percent of the two-party vote but took
61 percent of the Assembly’s 99 seats.
A key question in Monday’s ruling, as in past challenges to
redistricting, was whether that division was unacceptably partisan, a
question that previous courts have stumbled over.
"Nobody has come up with a standard to measure constitutionality --
how to distinguish between malevolent, evil partisanship that’s
manipulative, versus the natural advantage one party might have as a
result of where voters happened to live," said Edward Foley, the
director of the Election Law Project at Ohio State University’s Moritz
College of Law.
In Monday's ruling, the court was swayed by a new and simple
mathematical formula to measure the extent of partisan gerrymandering,
called the efficiency gap. The formula divides the difference between
the two parties' "wasted votes" -- votes beyond those needed by a
winning side, and votes cast by a losing side -- by the total number
of votes cast. When both parties waste the same number of votes, the
result is zero -- an ideal solution. But as a winning party wastes
fewer and fewer votes than its opponent, its score rises.
A truly efficient gerrymander spreads a winning party's votes so
evenly over districts that very few votes are wasted. A review of four
decades of state redistricting plans concluded that any party with an
efficiency gap of 7 percent or more was likely to keep its majority
during the 10 years before new districts were drawn.
In Wisconsin, experts testified, Republicans scored an efficiency gap
rating of 11.69 percent to 13 percent in the first election after the
maps were redrawn in 2011.
Some experts said the efficiency gap gives gerrymandering opponents
their most promising chance yet to persuade a majority of the Supreme
Court to limit partisan redistricting.
"It does almost exactly what Justice Kennedy said he was looking for
back in the ’80s, a clear threshold for deciding what is acceptable,"
said Barry C. Burden, the director of the Elections Research Center at
the University of Wisconsin-Madison.
Under procedural rules, cases like redistricting lawsuits that are
heard by three-judge panels in District Court are appealed directly to
the Supreme Court, skipping the Federal Court of Appeals. But it
remains unclear whether Wisconsin will file an appeal or accept the
ruling and limit its impact to a single state.
Were the Supreme Court to hear the case, the effect could be profound,
regardless of the decision. Republicans have more than doubled their
control of state legislatures since 2010, and with gains from this
month’s election they now control both legislative chambers in a
record 32 states -- 33 if Nebraska, which has a nominally nonpartisan,
unicameral legislature, is included.
Nicholas Stephanopoulos, a University of Chicago law professor and the
lead lawyer for the plaintiffs, said on Monday that a number of state
redistricting plans, including those in Virginia, North Carolina and
Michigan, have efficiency gap scores rivaling those of Wisconsin.
--
Warren D. Smith
http://RangeVoting.org <-- add your endorsement (by clicking
"endorse" as 1st step)
Kevin Baas
Nov 29, 2016, 3:43:45 PM11/29/16
to The Center for Election Science
Efficiency gap is a bad measure. Many problems, not the least of which are false positives, false negatives, not swing independent...
Should use either
* partisan asymmetry or (total displacement from a symmetric seats-votes curve)
* difference in probability of having a tie-breaking vote.
Warren D Smith
Nov 29, 2016, 3:58:57 PM11/29/16
to electio...@googlegroups.com
the "efficiency gap" is very similar, far as I can see, to what you call
"total displacement."
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"total displacement."
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Kevin Baas
Nov 29, 2016, 4:04:31 PM11/29/16
to The Center for Election Science
You must not be understanding me then.
Here's a picture that should make it clear:
the total area of the shaded area is the amount of partisan asymmetry.
The length of the vertical line from x=y to the seats votes curve, at x=actual popular vote fraction, is the efficiency gap.
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