Transcript

JAD: Hey I'm Jad Abumrad and today, not an an entire More Perfect story; just something that you need to know right now. The Supreme Court's about to hear a case that apparently could turn the country's legislative maps upside down. More Perfect’s Sean Rameswaram is going to take it from here.

SEAN: Hello Jad. Hello America. So let’s start with some context. Republicans controlled a lot of legislatures in 2010 and there was also a census that year, which meant that a whole lot of Republicans got to redraw a whole lot of legislative maps and a lot of those maps benefited Republicans. Democrats did this, too. But today’s case, Gill v. Whitford, is about a Republican maneuver. A map in Wisconsin where, for example, in 2012, Democrats got 53 percent of the vote but only 39 percent of the seats. And Republicans made that happen by packing democrats into super democratic districts where their votes were essentially wasted, and also by cracking democrats into mostly Republican districts, where their votes were essentially wasted.

[ARCHIVAL NEWS / Reuters]:

In a move that could have a huge bearing on the future of American politics the Supreme Court on Monday agreeing to take up an explosive case whether lawmakers in Wisconsin's Republican led legislature went too far in 2011 when they redrew the state's electoral map to make it harder for Democrats to win legislative races.

SEAN: And what makes this Supreme Court case all the bigger a big deal right now is the timing.

LEVITT: This is the first time in more than a decade that it's going to take up the question of drawing lines for partisan gains

SEAN: And this is Justin Levitt. He teaches law at Loyola in Los Angeles



LEVITT: It's going to do that right on the eve of everybody redrawing the lines

everywhere. Local districts, state districts, congressional districts, after the census in

2020,all sorts of different bodies will redraw all sorts of different lines. And this case will help decide how and where.

SEAN: And if the Court can crack this nut, it’ll be solving one of the biggest, and baddest, and oldest abuses of power in our democracy.

LEVITT: It goes back to before there was an America. So there were problems with

rotten boroughs in England, which were essentially districts with no people in them that nevertheless elected representatives. In this country, in America, the allegations go -- and these these are also contested all the way back -- the allegations are that Patrick Henry tried to gerrymander James Madison out of the very first Congress -- some seats in Virginia -- because he was so upset with the Constitution. The word itself comes from an 1812 attempt to change the lines in Massachusetts. It is named after Governor of Massachusetts, Elbridge Gerry. And if you go to northeastern Massachusetts they will tell you passionately that it's called the gerrymander and not a jerrymander. That's something that people actually argue about.

SEAN: Get over it, Massachusetts.

LEVITT: So, the allegations were that that Elbridge Gerry created a district that snaked

around the Northern Cape and suburbs essentially. It was ridiculed in a political cartoon at the time as looking more like a salamander than a district. And the portmanteau was born: a gerrymander.

SEAN: And since that moment we’ve been living with this unfortunate word. And this unfortunate problem. And it turns out it’s a really hard question to solve. Levitt says you can’t just hit reset, draw some rectangles and call it a day.

LEVITT: That's not the way people live. Nobody has ever bought a house because it fit the last perfect spot on the last perfect square grid in the last perfect development in a square city in a square county in a square state. The way we live is sloppy and messy and organic.

JAD: See that - I find that interesting ‘cause one of the conversations people have about districts a lot of times is ‘hahah look at this district it’s so crazy, it’s got a little tendril and its raahh and it’s over here rah’ but the truth is like if you look at like votings rights districts, they’ll do that-

SEAN: Exactly

JAD: -to try and keep populations together, right?

SEAN: Totally. I think the best example to look at here is Illinois’ 4th Congressional District.

JAD: Mm.

SEAN: It looks like this weird jaw, this skeletal jaw, trying to like eat Lake Michigan.

JAD: Laugh

SEAN: And it’s like, oh no, people actually call it the earmuffs. I didn’t think earmuffs because it’s horizontal so. If you flipped it that way, they look like earmuffs.

JAD: Oh

SEAN: Like 2 big chunks, connected by this basically this string.

JAD: Uh huh

SEAN: It looks really tacky. It’s running up a highway. But this was drawn by democrats to unite two similar but geographically, you know, apart Latino districts

JAD: Right.

SEAN: And to create some kind of cohesive block. And it’s actually-- If you look at it that way, it’s a very good, helpful district.

JAD: Yeah. It gives that community a voice.

SEAN: Right so in the end the question is how do you distinguish between what’s giving a community a voice and what’s straight up scandalous cheating.

LEVITT: It all starts with designing districts around real communities that have something in common with each other.

SEAN: Mm.

LEVITT: It turns out that really hard to do when you're a legislator focused intently on the next election.

SEAN: And that’s why, time and again, gerrymandering has ended up in front of the Supreme Court of the United States. The nine justices in D.C. have to do what Congress doesn’t really care to.

ARCHIVAL STEVENS: "The Constitution does not require the fox to guard the henhouse.”

SEAN: This is Justice Stevens back in 2004.

ARCHIVAL STEVENS: Partisan gerrymandering like the English rotten borough enables representatives to choose their constituents rather than vice versa.

It is an invidious, undemocratic, and unconstitutional practice.

SEAN: The case was called Vieth v. Jubelirer. It was the last time the Supreme Court dealt with partisan gerrymandering, and Justice Kennedy in Vieth v. Jubelirer basically said you legal community of America need to solve this for us or we are in big trouble.

OYEZ / KENNEDY: I don’t recall legislatures talking about what neutral standards ought to be. Now we have in our own juris, we talk about contiguity, geographical compactness. But I just don’t think we have a large source on which to draw. We know about numbers: one person, one vote. But beyond that it seems to me that we’re at sea.

SEAN: And the justices objectively looked at sea trying to fix this in Vieth v. Jubelirer. These are people who love rules, they love tests, so they came up with a whole bunch and no one could agree on any of them. They were looking at the big statewide picture versus the little picture. They were using racial standards from the voting rights act and not. It was like a hot mess of social science. And Kennedy could see this.

LEVITT: And what he said is, sitting in the middle, as he often is, the most powerful man in the country by many stretches: the courts should be in this business. Yes. But I haven't heard a standard that lets us decide how much is too much yet. So give me some. It was as public a plea to lawyers to bring cases to help him work through the appropriate test as I think anybody has ever seen.

SEAN: It was sort of like this public challenge, like who out there can solve this? And now…

[SFX: DRUMROLL]

SEAN: … we may finally have a solution! Allow me to introduce the efficiency gap formula.

[NEWSY MONTAGE: the efficiency gap, the efficiency gap formula…]

SEAN: The efficiency gap is essentially this relatively simple math equation for measuring partisan gerrymandering -- the idea is if the justices want to know was this district fairly drawn or are some legislators up to no good, all they have to do is grab a calculator, plug in a few numbers and BAM they get their answer. Two political scientists came up with it. And then a bunch of mathematicians weighed in on it. One of them was Professor Moon Duchin

MOON: You can call me Moon, or Professor Duchin.

SEAN: She works for Tufts University in Boston.

MOON: I do geometry, typology, group theory, and dynamics -- so a little bit of everything across the math spectrum.

SEAN: Just as a heads up, what follows does acknowledge the existence of a math spectrum. Moon co-authored a paper titled “A Formula Goes to Court,” which is essentially what’s happening here. The Supreme Court is going to consider whether this efficiency gap formula passes muster. Is this equation a reasonable standard for measuring partisan gerrymandering? And the efficiency gap formula does that in a couple different ways, most importantly by measuring what’s called wasted votes.

MOON: And wasted votes by definition, they are the number of votes that you got minus 50 percent if you won. In other words, they are the votes that you wasted while winning. So if Republicans got 60 percent in a district, the wastage would be 10 percent.

SEAN: Okay. So If I got ten votes, but only needed five. I wasted five?

MOON: Or they are all the votes if you lost. So in that same district the Democrats got 40 percent. And so that was 40 percent wasted because it didn't go towards electing a Democrat. Right?

SEAN: Okay so wastage for the losing side is basically all of the votes in a race where you lost, yeah?

MOON: That's all wastage works. And then the efficiency gap is quite simply: you take all the wasted votes for A across the entire state, all the wasted votes for B. And you take the difference as a proportion of the total turnout. That's it.

SEAN: That's it?

MOON: That's it.

MOON: That’s the efficiency gap.

SEAN: That's just, like, subtraction!

MOON: That’s it!



SEAN: It’s Party A’s wasted votes minus Party B’s wasted votes divided by the total number of people who voted? That gives you a number that measures gerrymandering?

MOON: It's addition and subtraction with a smattering of division. It is so not scary.

JAD: So Republican wasted votes minus Democrat wasted votes, divided by the total number of overall votes. That’s the efficiency gap?

SEAN: That’s what we’re trying to measure here. Yeah.

JAD: Why would that work as a measuring of gerrymandering?

SEAN: So let’s take like a purple state like Wisconsin where you you know have democrats winning and you have Republicans winning and they’re both wasting votes. They’re both winning elections, losing elections, and in each and every one of those races, they’re wasting votes because a wasted vote is anything over 50 if you won-- 50 percent. And anything you lost if you lost. Right?

JAD: Right.

SEAN: So wastage is happening across the board. But theoretically it’s happening on both sides so all of the wastage should be cancelling out. In Wisconsin we have this picture where Democrats won 53 percent of the vote but only won 39 percent of the seats.

JAD: So democrats were wasting a lot more than Republicans.

SEAN: Tons more. And that might mean that there’s sort of this pattern of wasted votes across the entire state. The entire map might’ve been drawn to favor one side.

JAD: Oh so is that like if you plug in the numbers in the equation, if you get a big number that means a lot of wastage, you get a little number that means zero -- Is that essentially it or is it something like that?

SEAN: Nailed it.

JAD: Really?

SEAN: Yeah.

JAD: Oh. That’s cool. So it literally is like dee doo dee doo boop. Oooh wastage. You know what I mean is it like that?

SEAN: Yeah but there’s actually a way that we don’t need the doo dee dee doo boop. Uh, Moon’s got an even easier way to understand this efficiency gap.

JAD: Huh

SEAN: A shortcut.

JAD: Are you going to tell me what it is?

SEAN: Do you want to know what it is right now?

JAD: No after the break

SEAN: After the break great.

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JAD: This is More Perfect I’m Jad Abumrad here with Sean Rameswaram. Uh we’re talking about the ancient problem of gerrymandering and how um a solution may be about the fly into the Supreme Court on the gleaming wings of math. You mentioned that there was a shortcut.

SEAN: Yeah yeah. You know if you don’t like the math we were doing earlier with the efficiency gap, Professor Duchin gave me this this sort of handy workaround that will probably make it a lot easier to understand the whole wasted vote thing.

JAD: Cool.

SEAN: It just involves comparing how many votes you got in a race to how many seats you got in that same race.

MOON: All you have to do is take your vote margin and double it. Efficiency gap tells you that should be your seat margin. So you got 53 percent of the votes, let's say. So that's a margin of 3 percent over half way. Double it and you should get 56 percent of the seats. If you get, try this with me now. If you get 60 percent of the votes, how many seats should you get?

SEAN: Okay. so, I got 60 percent of the vote. I needed 50 percent to win. So I subtract that off. 10 percent left, and doubled that’s 20 percent. And then I add back the 50 percent I won. And that’s… 70 percent? Of the seats?

MOON: You got it.

SEAN: But why not just, why not just 60 percent? Why did I double it?

MOON: So that's an excellent question. And what's...

SEAN: Yessss

MOON: LAUGHS. So these guys have a kind of complicated answer to that, although it's interesting. They say, well if you look at elections doubling the margin is what actually tends to happen.

SEAN: Oh.

MOON: They claim.

SEAN: Okay, so by “these guys,” Professor Duchin means Stephanopoulos and McGhee -- the dudes who came up with the efficiency gap. What they say is, when you look at elections across the country, and compare how many votes the winning party gets to how many seats the winning party gets, the winners tend to get some extra seats.

MOON: This idea is called a seats bonus. The idea that if you win by a little you should get a cushion in your governing majority.

SEAN: So it's like what our system is kind of funky. Let's roll with it. And here we baked the funk into the, into the formula?

MOON: We baked in the funk, I love it. That should be the subtitle. You’re a genius of branding. Right. So they're taking something descriptive: this is what actually happens. And then they're turning it around into something normative which says this is what should happen. So, well, let's look at let's look at Wisconsin.

[ARCHIVAL NEWS CLIP / MSNBC]:

The court said that gerrymandering, quote, “Did in fact prevent Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans.”

MOON: So Wisconsin in 2008: Dems get 57 percent of the vote. So what percent of seats should they get?

SEAN: This is according to the math we just did?

MOON: Yep you can do it.

SEAN: Okay, 57. Ditch the 50. I got 7. Times 2. Is 14. Plus the original 50. Uh, what, 64 percent of the seats?

MOON: You got it. Exactly. Instead...

SEAN: God, I’m just so nervous now that I’ll get it wrong.

MOON: I know, I have this effect on people. Instead in 2008 they get 52 percent. Right? And so that suggests that viewed through the lens of the efficiency gap things are stacked against them by quite a bit.

SEAN: OK

MOON: Right. And so that's how this works it becomes only a way to compare your vote margin to your seat margin.

SEAN: Now, Moon’s feeling about all this - the efficiency gap, the shortcut - it’s a good start, but just a start.

MOON: You know I really respect the effort to take something so complicated and boil it down into a single number but it fundamentally can't be done that simply.

SEAN: Because people are way more complicated than just one number. We are, we are geography, we are history, we are race, we are so many things.

MOON: You are going to need a few different metrics at once. And the fear is that that's what the court's been allergic to is if you have several different metrics how do you combine them and how do you decide when enough is enough? By good fortune, we're now finally in a position -- you know it's been a long time that partisan gerrymandering keeps being, the can keeps being kicked down the road by the court. And the good news is they may have sort of postponed and delayed just long enough that now we have some really good alternatives. So one of the most promising things that's coming down the pike is the use of computers. For-- people have dreamed of this for decades, but computing power just hasn't been nearly ready to contend with the big data of the redistricting problem. That's because we're doing some phenomenally complicated combinatorics. We’ve got this--

SEAN: What was that word?

MOON: Combinatorics, that’s what…

SEAN: I don’t even know what that is.

MOON: That's what mathematicians call the art of counting.

SEAN: Ohhh.

SEAN: The Supreme Court isn’t quite at combinatorics. But if Justice Kennedy likes the efficiency gap, the Court’s decision could dramatically change the way states draw lines. And if the Court can embrace this standard, Moon’s hoping it will go for others down the road, ones that more fully consider all the kinds of connections that make up a community.

MOON: There are just phenomenally many ways to break down millions of people into dozens of districts. If you just enumerate all the possibilities, that's the biggest data you're going to find. Bigger than medical problems, bigger than astronomical problems. So asking a computer to really understand all the possibilities has been out of reach. But what's happened recently is both computing power and the algorithms used to study this have been getting better and better. And folks have understood how to constrain that search space more. So, what we're what we're moving towards is a time when we'll be able to cut down the space of possibilities that you have to search and at the same time computers will be getting more powerful until those meet in the middle, andd computers can really see all the possibilities.

SEAN: So, when we're saying these numbers are too big for mathematicians to even wrap their heads around, we need computers...

MOON: Oh no, other way around! Mathematicians are very comfortable.

SEAN: Ohhh….

MOON: We’re even comfortable with infinity. It's the computers that have had to catch up.

SEAN: So sorry, OK. So when we’re saying the computers need to catch up...

MOON: That's right.

SEAN: ...how do we expect nine Supreme Court justices to get it right?

MOON: Well now here's the thing, right. So what happens when computers can really explore the space of possibilities is that they can build a bell curve of the properties of all the different maps.

SEAN: So computers are going to do it for us: create maps upon maps upon maps that together will give us an idea of what a district should look like.



MOON: And then you'll look at Wisconsin's actual plan the legislature enacted and you'll see where it fall on the bell curve. Is it in the nice meaty part in the middle? Or is it an outlier that's just out along the tail of the bell curve? That's pretty persuasive and that's a kind of outlier analysis that should be pretty comfortable for courts because they do this all the time for other kinds of legal standards.

SEAN: What does a perfect district look like? What is something that is just, that anyone regardless of political ideology could look at and say, “Oh, yeah. That’s fair.”

MOON: Yeah. Good question. I mean so it's fun to do the Rorschach blot version of detecting gerrymanders where you, you know-- In fact one of the things that my group is working on is like a swipe left swipe right app for voting districts. You're going to see a district, a little bit of information, and decide if you think it looks hot or not.

SEAN: That's hilarious. That’s great. Do you have that? Can I play?

MOON: Coming up, coming up.

SEAN: Tinder for congressional districts.

MOON: Exactly. We’re calling it Gerrymandr.

SEAN: [LAUGHS] Without the “e”?

MOON: You got it! Very good. Right, so I mean that's always going to be fun, but just that contour isn't always showing you what's really going on. It's not just the outline. It's also where the people are and how they're split, right? It's the guts of the district and not just a boundary that's got a lot of information about its legitimacy. So we're trying to throw a lot of 20th and even 21st century math at the district rendered as a graph or a network and we think that's going to produce some new insights.

SEAN: Before that happens, does the Supreme Court have to say in this Gill v. Whitford case, “Hey, partisan gerrymandering is wicked unconstitutional”?

MOON: [LAUGHS] Well, the Court has already told us that partisan gerrymandering is justiciable. They can, they can throw out plans is partisan gerrymanders. They just don't know how yet. Right?

SEAN: Yeah.

MOON: And so this case came up with efficiency gap as its centerpiece. In the future, cases may come up with outlier analysis as their centerpieces. There are going to be more than one bite at this apple.

SEAN: OK.

MOON: I regard efficiency gap as a great step towards convincing courts not to be scared of adjudicating partisan gerrymanders. It's a really good opening salvo.

SEAN: Great. Well thank you so much for all your time. I can't wait to download Gerrymandr

MOON: [LAUGHS]

SEAN: And meet my next favorite district.

MOON: That’s right. That’s right. Great great talking to you.







JAD: Sean Rameswaram. Supreme Court audio in this show is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by The Charles Evans Hughes Memorial Foundation. I’m Jad Abumrad. More Perfect will be back next week.