A federal district court is attempting to nullify the results of the last four elections in Wisconsin by declaring that the state legislature does not have enough Democrats. “Political gerrymandering” by the Republican-controlled state legislature, the court has concluded, has caused such an unfair result in favor of Republicans in the state legislature as to constitute a violation of the Equal Protection Clause—a conclusion that the Supreme Court has never reached.

In Article I, Section 4’s language about the “time, place, and manner” of holding elections for the federal House and Senate, the Constitution provides that state legislatures shall draw up voting districts for elections to the U.S. House. The Constitution says nothing about the drawing up of legislative districts for state offices.

That was considered a state political prerogative under federalism—until the Supreme Court repealed its own precedents and drastically altered the “political question” doctrine in its reapportionment and redistricting decisions in Baker v. Carr (1962), Westberry v. Sanders (1964), and Reynolds v. Sims (1964). With the passage of the Voting Right Act in 1965, the Supreme Court’s supervision of both federal and state reapportionment became comprehensive.

How To Decide A Political Gerrymandering Case?

Since the mid-1960s, almost all of the Supreme Court’s decisions in this area concern violations of the “one-man, one-vote” principle and/or allegations of racial gerrymandering. There have been only two cases of significance regarding the different principle of “political gerrymandering,” that is, the drawing up of legislative districts by the party in control of the legislative to favor its own candidates.

In Davis v. Bandemer (1986), the Court, in a plurality opinion addressing the claims by Democrats against the makeup of the Indiana legislature, held for the first time that claims of political gerrymandering could be adjudicated. But the Court also held that the apportionment scheme drawn up by the Republican legislature in Indiana had an insufficiently “adverse effect” on Democrats to constitute a violation of the Equal Protection Clause. While recognizing “the delicacy of intruding on this most political of legislative functions,” the Court concluded that a case of “discriminatory vote dilution” by a political party was possible.

But in Vieth v. Jubelirer (2004), the Court addressed the possible standard of proof a court could use and rejected a suit by Democrats that the 2001 reapportionment by the Pennsylvania legislature had violated their rights under the Equal Protection Claus. In the plurality decision for the court, four judges concluded that “eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.”

Justice Kennedy, who was not on the Court for the Davis decision, voted with the plurality on the facts of the Pennsylvania case but refused to join the plurality in overruling Bandemer. As for “how” to decide a political gerrymandering case, the Court observed that the fact that the four dissenters in the case could “come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard.”

It’s A ‘Pro-Republican Efficiency Gap’

In a 116 page, 416 footnote opinion, the federal district court in Wisconsin thinks that it has discovered such a standard. The court compares the number of state legislative seats won by each party to the total statewide popular vote for those seats. Thus, the court says, “In 2012, Republican voters garnered 48.6% of the [statewide] vote, but secured 60 seats in the Assembly [the state house]. In 2014, Republicans increased their vote percentage to 52 and secured 63 Assembly seats.”

The court concluded that the districting plan drawn up by the Republican-controlled legislature had created a voter “efficiency gap” and had caused the Democrats to have “wasted votes” in districts that they won too handily. The court held the Democrats could have used those votes to be more competitive in other districts, and the court was precise in stating the harm caused: there was a “pro-Republican efficiency gap” of 13 state house seats in 2012 and 10 state house seats in 2014. The court attributes almost no significance to the fact that the Republicans won control of the state legislature in the 2010 elections, not the 2012 or 2014 elections, under a redistricting plan put into effect by the court itself.

As legal support, the Wisconsin court really had only the opening left by Justice Kennedy in refusing to overrule Bandemer. Nevertheless, the court went on a scavenger hunt through Bandemer, Vieth and other Supreme Court decisions to find passages in plurality, concurring, and dissenting opinions to support its determination to create new constitutional law. Three of the most important cases that the court relied on as legal sources concerned racial not political gerrymandering.

With Big Data, Will Courts Control Representation?

The court has, therefore, required both the Democratic plaintiffs and the state of Wisconsin to come up with new redistricting plans. But it is more than obvious that the court has already done that work, including the precise calculations cited above, for the Democrat plaintiffs. And what can the state of Wisconsin do to counter that? It appears that it can do nothing. The court acknowledges that Wisconsin’s redistricting plan was based on “traditional districting principles” of compactness, contiguity, and respect for political subdivisions. And the case involved no allegations whatsoever of racial gerrymandering.

In other words, Wisconsin blamelessly configured its voting districts but was blamed anyway for failing a duty that it did not know existed. In this era of Big Data, in which every precinct (in every state) has statistics on the exact number of registered Democrats and Republicans, it seems that the result is a foregone conclusion: “efficiency gap” proportional representation.

In measuring statewide “wasted votes” for state legislative offices, the efficiency gap does not take into account that voters do not vote statewide. They vote for individual candidates in individual districts. Nor do they necessarily vote by party. In presidential elections, for instance, candidates Ronald Reagan, Barack Obama, and Donald Trump have all been candidates who attracted crossover voters. As for the statewide voting for governor in what the court thinks is Democratic Wisconsin, Republican Scott Walker has won that vote three times in this decade. In district-based elections that they win overwhelmingly, the Republicans have “wasted votes” as well. And should not the large number of independent voters be figured into the calculations?

The “efficiency gap” and “wasted votes” calculations may sound rather simple, but they are in fact based on sophisticated statistical interpretations by experts involving software models, regression analyses, and “S curves.” That is, unlike the act of voting, they are removed from the comprehension of the vast majority of citizens. So, the new model elections will be decided by these new means. Thus, voting, the first act of citizenship, will be regulated by courts and the experts they give credence to.