by Matt Lynch, Steering Committee member of ACS Madison Lawyer Chapter, and Britt Cudaback, President of ACS University of Wisconsin Law School Student Chapter
In the early months of 2011, while thousands of protesters demonstrated daily against the anti-union laws they advocated, Wisconsin GOP legislators crafted and enacted two measures that made it more difficult for their detractors to vote them out of power: partisan redistricting and strict voter identification requirements. While court challenges to the anti-union laws have now largely run their course, the legal battles over Wisconsin’s district maps and voter ID law have taken novel forms—and may soon offer tempting opportunities for the U.S. Supreme Court to bolster the procedural protections for participatory democracy.
Key players from both sides of those cases huddled with more than 70 attorneys and law students last Thursday night for “Wisconsin Election Law: Navigating the Thicket,” a panel discussion held at a Capitol Square restaurant overlooking the site of the 2011 demonstrations. The event was co-sponsored by the Federalist Society, the ACS University of Wisconsin Law School Student Chapter, and the newly formed ACS Madison Lawyer Chapter. UW Law School Assistant Professor Robert Yablon moderated the discussion.
New Tools for Political Gerrymandering – and a New Tool to Challenge It
In Wisconsin, the state legislature is primarily responsible for drawing legislative districts following the census, a system that incentivizes partisan gerrymandering by the majority party. Historically, gerrymandering was associated with comically misshapen districts. Since the dawn of the information age, however, egregious contortions are no longer necessary; parties can achieve the same goals of increasing partisan advantage with more subtle, computerized precision.
With its 2011 redistricting maps, the GOP-controlled Wisconsin legislature proved just how effective these new tools could be. The following year, all 99 Assembly seats were up for election, and Wisconsin voters cast 200,000 more votes for Democratic Assembly candidates than Republican candidates. Yet the Republicans won a commanding 60-39 majority.
That, according to panelist and Wisconsin law professor Bill Whitford, goes so far as to deny the fundamental principle of majority rule. “Of course there’s partisan gerrymandering, always has been,” he acknowledged. “But questions of degree are vitally important.”
Whitford believes that a newly described measure holds the key to answering those questions of degree in a simple, objective way. He is seeking to prove it in a lawsuit challenging Wisconsin’s partisan redistricting, Whitford v. Gill, which is awaiting a post-trial decision from a three-judge federal redistricting panel.
The new measure is the “efficiency gap,” which was described and defended in a 2015 law review article by Nicholas Stephanopoulos and Eric McGhee. The efficiency gap formula takes the total number of votes cast for a party’s candidates for legislative office statewide, then subtracts all “wasted” votes for that party—that is, votes cast for a losing candidate or those in excess of the number needed for a candidate to win. The remaining votes are “efficient,” because they proved necessary to elect a winning candidate. Partisan gerrymandering seeks to maximize the efficiency of its party’s voters and minimize the efficiency of the other party’s voters; the difference in each party’s efficiency percentages is the map’s “efficiency gap.”
The 2012 and 2014 Wisconsin state elections showed “efficiency gaps” of more than 10 percent in favor of Republicans—greater than any other state in the country. By comparison, the average efficiency gap in state legislative maps throughout the country between 1972 and 2014 was less than one percent. But the yearly average has crept upward as more sophisticated tools for voter mapping have emerged; since the 2010 Census, the average gap nationally exceeds three percent in favor of Republicans.