On Monday, November 21, a panel of three federal judges determined that the Wisconsin Legislature’s 2011 redrawing of State Assembly districts was an unconstitutional partisan gerrymander. This case, Whitford v. Gill (originally filed as Whitford v. Nichol), represents the first time in three decades that a federal court has struck down maps on the grounds that they give unfair advantage to a political party.It’s also the first time that a legal challenge to partisan maps has made use of the efficiency gap, defined in 2014 by political scientists Nicholas Stephanopoulos and Eric McGhee as “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. … When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.”
An article in The New York Times discussing the Wisconsin case said that according to several election-law scholars, “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.”
Plaintiffs used the efficiency gap to show that district lines for Wisconsin’s State Assembly had been drawn to disadvantage Democratic voters. Two of the three judges agreed, concluding that Wisconsin’s district maps violated both the First Amendment and the Equal Protection Clause of the 14th Amendment because they deprived Democratic voters of their right to representation.If Wisconsin appeals this decision, the case will move to the Supreme Court, with important implications for Pennsylvania. Initial research on the efficiency gap showed that our state was one of seven large states with pro-Republican gaps of at least two seats in 2012. The other states were Florida, Michigan, North Carolina, Ohio, Texas and Virginia.
Pennsylvania’s Republican Legislature engineered our congressional districts to make the best possible use of the Republican votes in the state, while Democrats waste their votes with super-majorities in the 1st, 2nd, 13th and 14th Congressional Districts. In all, about 79% of Democratic votes were “wasted” in this year’s election, while the Republicans only wasted 37% of their votes. The resulting “efficiency gap” is over three times as large as the corresponding gap in Wisconsin, which the court found unconstitutional.Even if the Democrats had performed better in Pennsylvania on November 8 and had led statewide by 10.9% in congressional races, our analysis shows that the Republicans would still have carried ten of Pennsylvania’s congressional districts, while the Democrats would have carried only eight.
Given the gerrymandering problem in Pennsylvania, we will be watching the Wisconsin case closely as we continue to organize regional working groups and build our grassroots network.
Carol Kuniholm and Barry Kauffman are the co-chairs of Fair Districts PA, a coalition of individuals and organizations — including The Philadelphia Jewish Voice — whose goal is to advocate for the reform of Pennsylvania’s redistricting rules.