U.S. court ruling could spur Pa. gerrymandering challenge

Jason Addy
  • A Wisconsin federal court struck down the state's district maps in November, ruling the plans were unconstitutionally gerrymandered.
  • A new gerrymandering measure presented in the case could form the basis of a challenge to Pennsylvania's maps.

Despite burgeoning public enthusiasm in Pennsylvania for an independent redistricting commission, it's not clear if the political will exists to pass the requisite constitutional amendment or whether it could be done in time for the next reapportionment.

But a recent federal court ruling has provided opponents of gerrymandering a new avenue to pursue.

After every U.S. Census, lawmakers who control the redistricting process must redraw electoral district boundaries, creating an opportunity for them to draw  maps that favor them come Election Day. Sometimes referred to as "incumbent protection plans," gerrymandered district maps that favor sitting representatives deprive voters of real choice and a real voice at the polls.

Breakthrough Visuals graphic artist Terry LaBan's rendering of the discussion at a Fair Districts PA event in Montgomery County in February. (Courtesy: www.breakthroughvisuals.com)

While Fair Districts PA and other organizations are fighting a multi-year battle to ensure parity in the next round of redistricting, a November ruling by the U.S. District Court for the Western District of Wisconsin might have opened up opportunities for a quicker fix to  Pennsylvania’s current, much-maligned system.

Efficiency gap: A panel of federal judges ruled 2-1 in favor of a constitutional challenge to Wisconsin’s district maps. The challenge relied, in part, on a new mathematical standard to measure the extent of gerrymandering, dubbed the “efficiency gap model.”

The efficiency gap model is based on the premise of “wasted votes” — votes that do not contribute to a successful candidate’s victory, said Eric McGhee, who created the model.

“Surplus” ballots cast for a winning candidate beyond one vote more than 50 percent do not have any bearing on the outcome of an election, while all votes cast for a losing candidate also are  “wasted,” said McGhee, a research fellow at the Public Policy Institute of California.

When a party in power looks to gerrymander a map, it can “pack” opposition voters into as few districts as possible or “crack” the opposition’s voting bloc across multiple districts, either way diluting their voting power, said Nicholas Stephanopoulos, an assistant professor at the University of Chicago Law School.

The majority party uses these techniques to ensure its opponents win their safe districts by large margins, while winning its own districts by slim margins to maximize the opposition party’s wasted votes, McGhee said.

McGhee said he created the model after becoming dissatisfied with the measurements used in numerous failed lawsuits challenging gerrymandering.

In a 2006 decision in a gerrymandering lawsuit from Texas, several U.S. Supreme Court justices showed a “surprising enthusiasm” for partisan symmetry — the idea that district plans should treat parties symmetrically in terms of their ability to convert votes into legislative seats, Stephanopoulos and McGhee wrote in their 2015 University of Chicago Law Review article outlining the efficiency gap model.

That enthusiasm led McGhee and Stephanopoulos to look for a universal, workable judicial standard that could be applied to measure the extent of gerrymandering in every state.

McGhee said courts are “very cautious and nervous” about getting involved in a state's redistricting process, but the efficiency gap model could provide them with measures and thresholds for when and when not to hear a challenge to a state’s district maps.

The efficiency gap model provides a single number that captures the magnitude of “cracking” and “packing” in any state’s plan, Stephanopoulos said, while the model also shows which side has benefited from the gerrymandering.

After working with McGhee on the model, Stephanopoulos served as an attorney for the plaintiffs in the Wisconsin case, who presented the new gerrymandering measure to the federal court.

Stephanopoulos said he was “hopeful” the court would consider the model because it provides a measurable standard for the extent of gerrymandering across every state in any given election cycle,

“We knew that the courts were technically open to challenges, but we also knew previous plaintiffs had a very poor record,” Stephanopoulos said, referring to the numerous gerrymandering challenges that have failed over the past three decades.

Stephanopoulos cautioned the efficiency gap model is just one component of a legal test for gerrymandering, as the plaintiffs also had to establish that Wisconsin lawmakers intended to gerrymander the district maps and that there were no “neutral justifications,” such as natural borders, for the skewed maps.

Wisconsin Attorney General Brad Schimel has appealed the federal district court’s ruling, and the case will now head to the U.S. Supreme Court. Appeals on redistricting cases bypass federal appeals courts and the normal appeals process.

Potential lawsuit: Ben Geffen, an attorney at the Public Interest Law Center in Philadelphia, said his organization has been approached by a number of voter-advocacy groups, and the PILC is “actively analyzing” its options for improving electoral equity, including a potential lawsuit.

While the PILC is supporting efforts to ensure parity in the redistricting process after the 2020 Census, Geffen said there is still time to fix the  maps that will be used in the 2018 and 2020 elections.

If the Wisconsin federal court’s ruling is upheld by the U.S. Supreme Court, Geffen believes the case could pave the way for challenges to other states' district maps.

“It would be a landmark decision that would breathe life into the claim that the federal Constitution prohibits partisan gerrymandering,” Geffen said.

Fair Districts PA Chair Carol Kuniholm said she believes that a challenge is “coming soon” and that it would be a “good way to call attention to the motives” behind Pennsylvania’s “very gerrymandered maps.”

She expects any challenge to Pennsylvania’s maps to mirror the challenge to Wisconsin’s maps by putting forward multiple recognizable standards to measure the extent of gerrymandering. Kuniholm said a key piece for establishing lawmakers’ intent to gerrymander district maps is proving that the skewed maps could not have been drawn randomly or “without nefarious purpose.”

“By any standard, the Wisconsin maps defy the possibility that it was done without meaning harm,” Kuniholm said. “By any standard that you use, Pennsylvania is way off the map, way off the grid. … Pennsylvania and Wisconsin (maps) could never be done randomly.”