Nov 16, 2017 13 min read

Democracy in America was never meant to be pure.

The U.S. Senate gives the same voice to the 586,000 people who live in Wyoming as the 40 million who live in California.

A majority of the public supports policies – making English the country’s official language, requiring universal background checks for gun purchases, raising taxes on the wealthy – that their representatives prevent from becoming law.

Two of the three presidents elected this century won with fewer votes than their main opponents.

And in most states, partisans select the voters who elect the lawmakers overseeing it all.

Redistricting – the act of dividing voters into the pools of people who pick legislators – has always been used as a lever on the democratic process, tilting the field in favor of one party or another. Today, the nine justices of the U.S. Supreme Court, the zenith of the least democratic branch of the world’s oldest democracy, are deciding whether those partisans have pulled that lever too far.

How they decide Gill v. Whitford, which challenges legislative maps drawn in Wisconsin, will determine the way maps are drawn in the future, and could reshape the 2018 midterms. Two lawsuits filed against Pennsylvania’s legislative districts, one in federal court and another in Commonwealth Court, likely will hinge on the decision, as will challenges filed against maps across the country.

“The U.S. Supreme Court has always held that some degree of partisanship is integral to drawing the maps,” said Drew Crompton, chief of staff to Senate President Pro Tempore Joe Scarnati and a veteran of several rounds of redistricting.

Legislative leaders draw districts that make it easier for their incumbents to keep their seats; national party leaders try to use the process to give their side an edge in elections and, ultimately, more control over the federal government.

Opponents of the practice say it hobbles government by making seats so safe, the only real competition is in the primary, where the most ardent partisans hold sway and “compromise” shrinks to a four-letter word.

“Most legislators seem to be focused on what happens in their primary, as opposed to what happens in their general election. That ends up meaning that legislators go to the base, because in the primary, it’s a much smaller electorate, people who are much more highly motivated, much more ideological,” state Rep. Dan Frankel, D-Pittsburgh, said.

That makes representatives less accountable for the jobs they do – or fail to do – said Suzanne Almeida, executive director of the League of Women Voters of Pennsylvania, which is challenging the state maps in Commonwealth Court.

“Competitive elections make our government more accountable because it means that whoever gets elected needs to work in the best interest of all their constituents. They need to make sure their policies they’re espousing in the statehouse are in line with what their constituents want,” Almeida said.

Precedent case

The U.S. Supreme Court has forced lawmakers to redraw boundaries if they’ve discriminated based on race, but it’s never been able to figure out a standard for what constitutes undue partisanship.

The difference this time is something called the “efficiency gap,” a new way to measure whether legislative districts violate the one-person-one-vote rule by making votes for one party count more than others.

The case hinges on Justice Anthony Kennedy’s 2004 concurring opinion in Vieth v. Jubelirer.

Yes, that Jubelirer.

Three registered Democrats – two from Lancaster County and one from Montgomery County – challenged legislative districts drawn by Pennsylvania Republicans after the 2000 census. Robert Jubelirer was Senate President, Matthew Ryan was House Speaker, and Mark Schweiker served as governor.

The state lost two U.S. House seats after that census year, and Republicans from strategist Karl Rove to U.S. Sen. Rick Santorum to U.S. House Speaker Dennis Hastert urged Pennsylvania lawmakers to tilt the map in the GOP’s favor, according to the lawsuit. Democrats had gerrymandered Georgia’s congressional districts, and Republicans wanted payback.

“We would be stupid not to reciprocate,” Rep. Thomas M. Davis III, chairman of the National Republican Congressional Committee, said then. Pennsylvania “will make Georgia look like a picnic.”

The resulting map fractured towns, snaked in and out of counties and stretched districts as thin as 300 yards to keep them contiguous (one of the few hard rules of redistricting).

In the 2000 elections, the state’s closely divided electorate sent 11 Republicans and 10 Democrats to Congress. In the 2002 elections, the first drawn with the new maps, Republican candidates won 12 of 19 seats – 63 percent of Pennsylvania allotment – with 56 percent of the vote.

Vieth’s challenge of the maps made it to the Supreme Court the following year, and the court upheld the map in a 5-4 decision.

The late Justice Antonin Scalia, writing the majority opinion, tried to build a wall between the court and partisan legislative maps.

“Laws promulgated by the Legislative Branch can be inconsistent, illogical and ad hoc; laws pronounced by the courts must be principled, rational, and based on reasoned distinctions,” Scalia wrote.

There simply was no standard way to say when a map gave so much partisan advantage to one party that it infringed on the one-person-one-vote principle. Justice Kennedy agreed with that part but, in his concurring opinion, saw a door in Scalia’s wall.

Someday, Kennedy wrote, such a test might exist.

Rapid evolution

In the 10 years that followed, a couple of changes occurred that would profoundly affect redistricting around the country, said Franklin Kury, a lawyer and former member of the state House and Senate.

The first is an increase in computing power that allows lawmakers to tailor districts with a precision that would’ve seemed like science fiction not long ago. And they can do it quickly, to boot.

In 1990, it took about a week to draw a legislative map. By 2000, that was down to a few days. In 2010, they could draw a map in less than a day, Crompton said.

“I would assume in this cycle we’re approaching the point where you may be looking at maps in a few hours,” Crompton said.

That gives legislators far more options to tailor their districts to suit their parties’ political fortunes, but it also gives the minority party the option to present their own maps as a rebuttal, Crompton said. The competing maps can lead to a more robust debate about how the state’s voters should be grouped, he said.

Ultimately, though, it’s the party in power that makes the final decision. And making sure the right party is in power at the right time became much more of a focus for wealthy donors after a pair of Supreme Court decisions in recent years, said Kury, who is writing a book, “Give a Damn! It’s your country,” about gerrymandering throughout American history.

In 2010, the Citizens United decision struck down a ban on corporate money in elections and, four years later, another decision led to the rise of so-called dark money groups that mask the source of their funding.

“That money goes into legislative races to get control of the redistricting process,” Kury said.

Republicans have been far better – and more focused – on winning those races than Democrats in recent years. The GOP controls both the legislatures and governors’ offices in 26 states, compared to six states where the Democrats control both branches.

That’s no accident.

Beginning in the mid-2000s, Republicans prioritized state legislative races while the Democratic Party focused on the White House and Congress, said Frankel.

“By 2010, we lost 1,000 legislative seats around the country, and the fact of the matter is, since Ronald Reagan was president, so much of governing has really evolved down to the state level,” Frankel said.

The Democrats’ focus on Washington “has really cost us. It put us in a weak position.”

A new standard

Wisconsin Republicans used their newfound power to draw a map that was so skewed, it allowed the GOP to win 60 of the state’s 99 state Assembly seats, despite the fact that Democratic candidates for those seats got more votes overall.

That violates a principle known as symmetry, said Paul Smith, the lawyer who argued both the Vieth and Gill cases before the Supreme Court.

The idea behind symmetry is that if one party gets 56 percent of the seats with, say, 51 percent of the vote, then the other party ought to be able to win the same number of seats with the same share of the vote.

“The problem with this map is that it is very likely that even if the Democrats get a majority of the vote, they’re not going to get a majority of the seats,” Smith said.

When the Wisconsin challenge made it to the Supreme Court, Smith in some ways had an audience of one.

“It was all about Justice Kennedy,” Smith said. “Everyone perceived him as being the critical justice.”

So Smith’s argument focused on persuading Kennedy that they’d finally found the elusive measurement Kennedy wrote about in his 2004 concurrence.

“We didn’t have any kind of quantitative standards” in 2004, Smith said.

The plaintiffs say that changed in 2014 with the publication of a research paper explaining the efficiency gap, written by University of Chicago Law School professor Nicholas Stephanopolous and Public Policy of California research fellow Eric McGhee.

The efficiency gap measures how meaningful people’s votes are in each party. The gist of it is, any votes cast for a losing candidate are “wasted” votes, as are any votes cast for a winning candidate above the one vote that candidate needed to win.

Think of a two-party election with 100 voters. If a Republican candidate wins with 52 votes, the GOP wasted 1 vote and the Democrats wasted 48. If a Democrat wins with 70 votes, his party wasted 19 votes, compared to 30 wasted by Republicans.

Now let’s say those elections were the only congressional races in the commonwealth of Mathsylvania. Democrats wasted 67 votes statewide. Republicans wasted 31. That leaves Democrats with a net wasted-vote total of 36. Divide that by the total number of votes cast – 200 – and you get an efficiency gap of 18 percent.

Though a bit daunting at first glance, the math really isn’t difficult. It’s just a series of simple subtraction and division problems. And the upshot of the Mathsylvania elections is that Republicans were able to get the same number of seats with fewer votes than Democrats. Each of their votes mattered more to the final outcome.

The politics of justice

The plaintiffs challenging the Wisconsin case want the Supreme Court to set an efficiency gap threshold at 7 percent. That’s the point at which, according to another researcher’s work, there’s a 95-percent chance that the maps will never favor the other party.

Seven percent isn’t exactly an easily justifiable number, though, Chief Justice John Roberts said.

“That doesn’t sound like language in the Constitution,” he said during argument.

He’s also worried that setting a standard for something as amorphous as partisanship could ultimately weaken the federal judiciary. If the courts start striking down politically drawn maps, Republican voters who watch their party lose seats – and, potentially, control of Congress – won’t buy the argument that the blame lies with a mathematical equation they’ve never heard of, Roberts said.

“The intelligent man on the street is going to say, ‘That’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over Republicans.’ And that’s going to come down in one case after another as these cases are brought in every state,” Roberts said. “That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

Roberts’ fear is an echo from 55 years earlier, when the court first ruled that the federal judiciary could decide redistricting cases. Then-Justice Felix Frankfurter warned in his dissenting opinion that the court would delegitimize itself by wading into an inherently political process.

“The Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements,” Frankfurter wrote.

A landmark

That ship might have sailed. No matter which way the justices decide the Wisconsin case, they’ll likely alter the course of American democracy.

If they decide the map is too partisan, state lawmakers across the country (including Pennsylvania) will have to head back to the drawing board with a new standard to meet. If they uphold Wisconsin’s maps, they’ll pave the way for others to go even further, potentially making the process of extreme partisan gerrymandering an imperative for whichever party holds power.

The country has taken notice.

• A story that’s normally followed by few outside the ranks of wonks and politicos has become front-page news, spawned books such as Kury’s and “Ratfked: The True Story Behind the Secret Plan to Steal America’s Democracy” (which features a photo of Pennsylvania’s infamous 7th Congressional District), and become a focal point for interest groups of all political stripes. Forty-four groups filed amicus briefs supporting one side or the other in the case, Kury said.

“The state of Texas, the NAACP, just about every group in the country that has an interest in the outcome of the case. A lot of people are concerned about this subject,” Kury said.

The state Supreme Court on Thursday ordered the Commonwealth Court to finish its findings of fact and conclusions of law in the League of Women Voters’ suit by year’s end. That opens the possibility for an order to redraw the state’s Congressional districts before the 2018 midterms, when control of Congress will be decided.

“Once we know that people’s votes aren’t counting, then we need to move as quickly as possible to correct the problem and correct the system,” Almeida said.

If it comes to that, General Assembly staffers will be starting from scratch.

“We’re not cavalier, but we’re also not convinced that we should be doing anything other than defending the lawsuits,” Crompton said.

“We have every reason to think we’re going to win,” he said.