One should not criticize wisdom when it comes late because too often wisdom does not come at all. So we should be happy that after 35 years, liberal politicians and their academic supporters have suddenly discovered the evils of gerrymandering, and brought a case challenging its constitutionality before the US Supreme Court.
I was present at the birth of modern gerrymandering, the 1981 Democratic plan devised by Rep. Philip Burton (D-California) which he called “my contribution to modern art.” I saw how he did it as the Assembly Republican redistricting consultant. Today’s gerrymanders are no less partisan and brutal than the Burton plan was, it is just that faster computers make it easier to do.
Burton’s plan initially worked as he hoped it would. After being imposed despite a referendum qualified against it by the highly partisan California Supreme Court under Chief Justice Rose Bird, it created lots of new Democratic congressional seats. But in the long term it did not work. Bird was removed as Chief Justice in 1986 partially because of the redistricting ruling, and in the 1990s Republicans reversed many of the Burton gains and prevented partisan gerrymanders over the next three cycles.
But Burton’s greatest legacy is that he taught Republicans how to play the game. While Democrats slept, Republicans went around the nation winning legislative bodies, knowing full well that legislatures draw districts. They learned how to manipulate the Voting Rights Act to draw “majority-minority” districts that concentrated Democratic voters thus wasting millions of Democratic votes while wining a large majority of the non-minority districts.
The 2011 GOP gerrymanders in numerous large states have helped buttress Republican control of the US House of Representatives. It is not the only reason; Democratic voters tend to cluster in urban areas giving Republicans a natural advantage in many urban-rural states. Of course, Democrats did counter Republican gerrymanders in states where they had control.
But Democrats lost big time in the line drawing of this decade and they have finally managed to get one of the more extreme gerrymanders before the Supreme Court. It involves the Wisconsin State Assembly, where Republicans hold two thirds of the seats but won only about half the Assembly vote in the elections this decade.
Election experts aligned with the Democrats insist you can measure a gerrymander by the “efficiency gap”; that is, by how much the plan wastes your opponents’ votes. They claim that the Wisconsin gerrymander plan “packs” and “cracks” the Democratic vote by concentrating it in the big cities where Democrats win a few seats overwhelmingly, and then spreads out the Republican vote so they have lots of safe seats they win by more modest margins.
In the oral argument last week, Chief Justice John Roberts dismissed this academic argument as “sociological gobbledygook.” He made it clear that he and the other conservatives have no intention of finding the practice of gerrymandering unconstitutional, even though no one can deny that Wisconsin is a classic gerrymander. The liberal justices, of course, were horrified by the map and want it declared a violation of the 1st and 14th Amendments.
This is exactly the opposite of how judges acted 30 years when Republicans brought legal challenges to the Burton plan and other Democratic gerrymanders. GOP appointed judges took the challenges seriously while Democratic judges just poo-pooed them.
But it also underscores the most serious question: what are you going to do about gerrymandering even if it is unconstitutional. The efficiency gap theory has the problem that voters do cluster on the natural and the Voting Rights Act does require drawing majority-minority districts. Also, the two party vote count is not entirely reliable because many legislators, especially in Wisconsin, run unopposed.
My guess is that Justice Anthony Kennedy, the Court’s swing vote, will join with the liberals to void the Wisconsin map as an extreme gerrymander. He will probably then order the lower courts to develop a new State Assembly map.
It would be huge mistake, however, for him to do what many liberal academics want, declare gerrymandering itself unconstitutional using an academic formula. That is because the practice, while often very nefarious, is also very hard to mathematically quantify. Districts must be equally populated, so one anti-gerrymandering tool, following existing jurisdictional lines, is not possible. If you spread out the heavily Democratic urban vote too much you will frustrate the Voting Rights Act by denying majority-minority districts, and a separate Supreme Court ruling says you cannot do this.
The Republican remedy when I was involved was to ask courts to order retired judges or court masters to draw the districts. The California GOP strongly embraced taking the job away from legislature altogether as the voters finally did. I doubt the Supreme Court is going to say that legislators cannot be allowed to perform this task.
Chief Justice Roberts is correct in his warning at oral argument about dragging the court too far into the political thicket. If the court does try to apply a mathematical standard it is likely to have all sorts of losing parries in state redistrictings come before it asking that the winning plans be thrown out.
But the national Republican legislative gerrymanders of 2011, while in many cases quite clever, are often also quite extreme. And they do lead to a loss of representation for the losing side. So perhaps the Supreme Court will take a serious whack at this unseemly but very effective practice of retaining and expanding political power.