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1/x This thread will attempt to put in plain terms the gerrymandering case that was argued before the Court today.
2/x It is not meant for anyone who is already an expert in voting rights and election law or who has already followed the case closely.
3/x Up until 2010, Wisconsin did not have a proper redistricting plan drawn by the legislature. Going back to 1980, the state's plan
4/x was basically drawn or supervised by a federal court because different parties controlled the state house and governor's office.
5/x As a result, they could never agree on a plan. In 2010, for the first time in 40 years, republicans gained control of both branches.
6/x They set about drawing a new plan and were very clear about their goals. They hired academics and consultants to design a system
7/x that would guarantee them a majority of seats in the legislature even if they did not win a majority of votes statewide.
8/x They are basically two ways you can gerymander your way to this goal: cracking and packing. Cracking means, you take, say, democrats
9/x in an area and you spread them over multiple districts such that there are never enough of them in a district to elect a democrat.
10/x Packing is the opposite. You take democrats in an area and you squeeze as many as you can into limited number of districts, so that
11/x democrats in that district get elected with more votes than they need when those votes could have been used elsewhere.
12/x Looking at packing and cracking, political scientists came up with the theory of wasted votes. The theory say your vote is wasted when
13/x they are not enough of you in a district to elect your party (cracking), or
14/x when they are more of you in your district than your candidate needs. More recently, researchers used the wasted vote theory
15/x to come up with a doctrine they call the efficiency gap. Their argument is that, you can never design a perfect system in which
16/x there are no wasted votes; there is always going to be some inefficiency in the system - some cracking and some packing.
17/x However, when one party wastes votes at a significantly much higher rate than another party, then you have an efficiency gap.
18/x In other words, they came up with a mathematical formula for identifying when there is "too much" political gerrymandering going on.
19/x That's the formula Chief Justice Roberts call gobblely gook this morning . To be clear, not every expert likes or accepts the
20/x efficiency gap. But when you apply it to Wisconsin, you see is that republicans in Wisconsin were very deliberate in drawing districts
21/x They literally told their consultants the following: how would we need to draw districts to guarantee we win X number of seats even if
22/x we win Y votes. In other words, they wanted consultants to draw a map that would guarantee a majority of seats with a minority of votes
23/x And it worked beautifully. In 2012, republicans won 48.6% of the statewide vote but got 60 out of 99 seats.
24/x In 2014, they did even better, winning 52% of the vote and 63 of 99 seats. In short, they came up with a system,
25/x where they win a majority of seats if they win a majority of votes, and a majority of seats even if they win only a minority of votes.
26/x To be sure, democratic voters could defeat the system but only if they outvoted republicans by a huge margins.
27/x That, in a nutshell, is what is at stake in the case. Does it violate the Constitution to gerrymander legislative districts along
28/x partisan lines in such an extreme fashion. The lower court said yes it was a violation. A lot of people watching the case, say SCOTUS
29/x is likely to say no and that the decision will be 5 to 4. As is often the case, they key vote will likely be Justice Kennedy.
30/x If he votes with Roberts, Alito, Tomas, and Gorsuch, then we will likely gets forms of minority rule around the country in the future.
31/x If he votes with Breyer, Ginsburg, Kagan and Sotomayor, then it might help stop extreme gerrymandering. But one thing is certain:
32/32 What the Wisconsin republican party did was clever in a technical sense. If the Court upholds it, expect other states to do the same.
PS1 To be fair I should have included critiques of the efficiency gap. There are many but the main one is this:
2 in a system in which there is no gerrymandering abuse you would expect the efficiency gap to be zero. That is you would expect for there
3 to be no difference between the rate at which republicans waste votes and the rate at which democrats waste votes.
4. But the more one party abuses gerrymandering the greater the rate at which the party out of power will wares votes.
5. So instead of 0, the gap will be 1, 3, 7 etc. In real world gap is almost never 0. So how do you chose a number at which it’s too much?
6. Critiques say there is no objective way to choose a gap of 7 as opposed to 3 as the trigger that violates the constitution.
1 One last point to avoid being accused of bad faith. I’m not suggesting Republicans invented gerrymandering. They did not.
2. Packing and cracking are as old as political parties. Everybody tries to get an advantage. Second, SCOTUS has never said
3. That gerrymandering is per se bad. Some forms of it (racial gerrymandering with the intent or effect to minimize political power of
4 a racial group) have long been impermissible. However, in the main courts understand that parties will seek to gain advantage. Part of
5 what makes the Wisconsin model a brave new world is that with the aid of computer models, we’ve come up with extraordinarily effective
6 ways to reverse engineer districts to guarantee certain outcomes. Perhaps this is not a constitutional problem but it is a problem to a
7. degree we have little if any historical precedent for. We are in somewhat unchartered territory.
