We’ve all heard the term “gerrymandering.” What you may not know is two things: first, both sides of the political spectrum do it and second, there are many that believe it is the root of our divisive nature in politics. Long have I sat at tables trying to explain why – as a country – we are becoming more polarized in our politics. It goes something like this:
Every ten years, the United States conducts a census. When those numbers are crunched, each state is expected to redistrict. In most states, that process is controlled by the party which controls the general assembly and they tend to make sure that their seats are safe. However, having a majority isn’t good enough anymore. Having super-ultra-mega- safe seats is the new ballgame. This, unfortunately, creates an electorate which demands absolute loyalty to the party platform. If you don’t vote lock-step or are seen capitulating in anyway, you’re challenged and ousted for someone who will be.
So, what’s the problem with that? Well, it may have run afoul of the Constitution.
The United States Supreme Court (SCOTUS) has been attempting to find a fair way to deal with the gerrymandering question since the early 1980s. In Davis v. Bandemer, the Indiana General Assembly performed a redistricting based on the 1980 census. In the 1982 elections, Democrats received 51.9% of the vote in the House, but only 43/ 100 seats. Democrats, further, garnered 53.1% of the vote in the Senate and 13/25 of the seats there. Indiana Democrats sued under the fourteenth amendment claiming it was a violation of equal protection. SCOTUS, ultimately, ruled against the Indiana Democrats. But the Court opened the door to more challenges like this.
The problem, however, in the years and cases based on gerrymandering since is how does the Court come up with a test to judge whether or not a redistricting plan has violated the one person, one vote rule.
Gill v. Whitford, the recently accepted gerrymandering case which has caused this stir, is based on a similar problem. As a member of the SCOTUS bar (i.e. I can argue before it if the need ever arose), I geek out at these kinds of cases.
Gill’s case is based on the 2011 Wisconsin redistricting. With those maps, Republicans received 48.6% of the vote, but won 60/99 seats in their legislature in 2012. In 2014, the Wisconsin GOP received 52% of the vote, but won 63/ 99 seats. So what’s the difference between the two cases? Well, enter math and what has been termed the “efficiency gap.”
The efficiency gap, was introduced in a law review paper in 2015 and the authors argue their mathematical equation will finally be the test SCOTUS has been asking for since Davis. Essentially, the authors propose that there are wasted votes (i.e. more than what is necessary to win or lose the election). If the equation equals a percentage of wasted votes above a certain number, then the redistricting plan is unconstitutional. The Brennan Center for Justice does an excellent breakdown of how the math works if you’re really interested. But what does that do for Indiana?
Well, at the beginning of the paper, the authors state that they have broken down every state and federal election in each state between 1972 and 2012. Their data allows them to show which gerrymanders are “severe and entrenched.” Meaning when there is an advantage of two or more congressional seats and/ or more than an eight percent gap in the state races, these electoral maps cannot be changed by normal political sways. Okay, simple English: these electoral maps are so unfair that they are unconstitutional. And, guess who is on that list? If you said the Indiana General Assembly, you’d be right.
In the paper, the authors come to the mathematical conclusion that Indiana, in 2012, was near a nine percent efficiency gap when it came to the General Assembly. In 2012, we know that Republicans had 106 total seats compared to Democrats’ 44. That’s 70% of the available seats. In the 2014 and 2016 elections, this gap increased to 111 seats for the Republicans and only 39 for the Democrats. That’s an increase for the Indiana Republicans. And, thanks to Citizens for Fair Elections, we know that in 2016, Republicans only received 58% of the total vote for those seats. This is obviously worse than when the authors wrote their article resulting in Gill.
Further, our Congressional electoral map wasn’t too far from the edge of unconstitutionality as well.
What about now? Others have done the math here and argue that, yes, based on the 2016 election results, Indiana would now fall outside the allowable line there as well. NWI Times states that Indiana Congressional Republicans received 59% of the vote, but have 78% of the Indiana House of Representatives seats.
What’s worse for Indiana is that our population is declining. Some have even noted that we may lose another Congressional seat as we did after the 2010 census due to this decline. Based on current projections by the U.S. Census bureau, this is very likely to occur.
If SCOTUS determines that the efficiency gap is the mathematical equation they have been asking lawyers to present them for over thirty years, Indiana’s electoral maps could be upended. If our public servants are truly hearing their constituents and believe that we should be coming together – politically – this may serve as just the opportunity they’re seeking.