opinion

Wisconsin awaits Supreme Court's ruling in gerrymandering case | W. Michael Slattery

No Democrat has won a congressional seat in the Wisconsin Sixth Congressional District since 1964.

Based on the results of the U.S. Census of 2010, state Republican legislators secretly, in the offices of a Madison law firm — with the help of mapping specialists, statisticians and highly technical algorithms developed by software engineers — re-drew lines of state legislative districts.

OPINION: Fight for fair maps highlighted in Supreme Court gerrymandering case

OPINION: On gerrymandering case before Supreme Court: Fair maps are good for democracy

The Republican team map drawn along redistricted lines of 2010 demonstrated that Republicans would maintain a majority (54 seats in a 99-seat Assembly) with only 48 percent of the statewide vote.

In the 2012 election, based on the redistricting of 2010, Democrats clearly won the majority of votes cast, but they got only 39 of the 99 Assembly seats.

In the 2016 elections for the Assembly, Democrats received 46.8 percent of the vote but got only 35 percent of the seats.

Although the Sixth Congressional District may not be the result of gerrymander exclusive of the concept of statistically wasted votes, the Assembly districts are a result of such.

This situation, and others elsewhere in the U.S. (e.g., North Carolina), have resulted in lawsuits critical of partisan gerrymander.

In Whitford v. Gill, a U.S. District Court on Nov. 21, 2016, adjudicated in a split 2-1 decision that Wisconsin Act 43, approved by the Wisconsin legislature in 2011, constitutes intentional, unconstitutional gerrymander by burdening the rights of Democratic voters to translate their votes into legislative seats.

Based on the results of the 2012 and 2014 elections, the court concluded that Act 43 had its intended effect.

Further, the court opined that the “discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interests.”

The State of Wisconsin filed an appeal to the U.S. Supreme Court in February 2017. The U.S. Supreme Court heard that appeal on Oct. 3, 2017, and will adjudicate its ruling in the near future.

Democratic plaintiffs argue two positions. First, partisan gerrymandering, like racial gerrymandering, violates voters’ rights to be treated equally.

In 1993, the Supreme Court ruled under Shaw v. Reno that racial gerrymander violates voters’ rights under the equal protection clause of the 14th Amendment, and is not in compliance with the Voting Rights Act of 1965.

Second, as Justice Anthony Kennedy had previously indicated in Vieth v. Jubelirer (2004), gerrymander violates “the right to freedom of expression and association, by ‘subjecting a group of voters or their party to disfavored treatment by reason of their views’” (New York Times, Sept. 3, 2017).

Kennedy noted as part of his losing decision in the aforementioned case of 2004 that no workable standard yet exists for striking down redistricting plans because of excessive partisanship, but a standard may emerge in the future.

Three possible standards for determining gerrymander have been proffered by many political voting analysts and statisticians. Each of these standards uses quantitative tests to appraise the level of partisan bias resulting in gerrymander, that is the maximization of legislative seats.

The first test is based on the efficiency gap and considers the wasted vote. Wasted votes are votes cast for the losing candidate and votes cast for the winning candidate greater than 50 percent of the vote.

If the wasted votes were basically the same for each party, this symmetry would seem to indicate fair mapping. If the difference exceeds some to-be-determined level, this would suggest partisan gerrymander.

In Whitford v. Gill, plaintiffs use a historical gap greater than 7 percent to indicate gerrymander.

A second test is the seats-to-votes curve as noted above for the state Assembly elections of 2012, 2014 and 2016. Using results on both, all votes cast and seats won over a period of four decades, a projected curve can be plotted that would show expected results. If the actual results deviated significantly from the historical curve, this would indicate partisan bias in redistricting.

The third test calculates the difference between the district’s or the state’s mean vote share to the respective median vote share. The greater the difference between the mean and the median, the greater is the probability that partisan gerrymander is unlikely to have been caused by chance.

How can citizens address this problem of partisan gerrymander exercised by both Republicans and Democrats that have been in the majority in their statehouses at the time of a decennial census? Iowa probably presents the best model for non- or bi-partisan redistricting.

Since 1980, Iowa has statutorily empowered a nonpartisan bill-drafting agency, the Legislative Services Agency, under the Assembly to draw up any redistricting plan. This agency submits the plan to the Assembly for approval and so far no plan has been contested in the courts. The agency is advised by the Assembly’s commission, composed of two members each of the majority and minority party plus a nonpartisan jointly elected citizen. If the legislature after three consecutive proposals cannot accept the redistricting plan, the decision for any redistricting is given to the state supreme court, according to the Legislative Services Agency's “Legislative Guide to Redistricting in Iowa” from December 2007.

Wisconsin, and much of the U.S., is eagerly awaiting the U.S. Supreme Court’s ruling on Whitford v. Gill to restore credibility and satisfaction to our political systems and to encourage more competitive electoral districts.

For more detailed analysis, see the Wisconsin Legislative Reference Bureau’s Gill v. Whitford: Wisconsin’s partisan gerrymandering case, written by Staci Duros.

Community columnist W. Michael Slattery is a Maribel resident.