Wednesday, April 5, 2017

WI Gerrymandering Case and Costs of Mandatory Jurisdiction

The 2-1 Federal Court decision striking down Wisconsin’s Redistricting plans for the State Legislature as an Unconstitutional Partisan Gerrymander, Whitford v. Gil, is the most significant Lower Federal Court Decision on Partisan Gerrymandering the Lower Courts have ever issued. The Case will also come to the Court in the Supreme Court’s Mandatory, Appellate Jurisdiction, which now exists only for a tiny sliver of Cases, including Challenges to Statewide Redistricting Plans.

In striking down a Statewide Redistricting Plan as an Unconstitutional Partisan Gerrymander, the Wisconsin Decision is the first of its kind. In addition, the Court relies in some part on a new Statistical Measure, the Efficiency Gap (EG), which is designed to help determine the extent of Partisan Gerrymandering in Election Maps. The Court essentially uses the EG to corroborate the findings on Partisan intent and effect it has otherwise reached. But in terms of both doctrinal development and methodology, the Decision does break new ground.

If this case were coming to the Court in its Certiorari Jurisdiction, the Court would be able to decide whether to postpone review until other Federal Courts had an opportunity to respond to the Wisconsin Decision. If Lower Courts accepted the General approach of the Wisconsin Court, what would this mean about how narrowly or expansively a Partisan Gerrymandering Doctrine with teeth would be in application? As Lower Courts grappled with arguments about the EG in the specific contexts of different Districting Plans, what conclusions would they come to about the relevance and usefulness of this measure? In the language of Supreme Court practice, the Court could bypass review in the Wiconsin case, the first of its kind, and wait for the issues to “percolate” in the Lower Courts. The Court would then have a richer reservoir of Judicial experience on which to draw in deciding the appropriate Doctrinal response.

With Mandatory Appellate Jurisdiction, the Court loses the ability to consider any of these factors. The Court either has to summarily affirm, a high threshold to get over for Lower Court Decisions involving novel Doctrinal and Methodological developments in important areas, or jump in on the merits the first time a Three-Judge Federal Court breaks new ground in a case that falls, as the Wisconsin Case does, within the Court’s Mandatory Appellate Jurisdiction.

What is the Efficiency Gap?

The Gap represents the difference between Political Parties’ respective Wasted Votes in an Election.

The Model considers a vote “Wasted” if it:

1. Is Cast for a Losing Candidate.

2. Is Cast for a Winning Candidate but that vote is in Excess of what the Candidate needs to win.

Votes can be considered Wasted as a result of Districts that have been Re-Drawn for Partisan advantage in the past, known as Gerrymandering.

Two Techniques are commonly used:

1. Cracking — Spreading one Party’s voters across multiple Districts to dilute their voting power, denying the Group Representation in multiple Districts.

2. Packing — Concentrating one Party’s voters in one District to limit their voting Party to only one District, limiting its influence in other Districts.

Large numbers of votes commonly are cast for Losing Candidates as a result of Cracking.

Likewise, excessive votes often are cast for Winning Candidates because of Packing.

How is the efficiency Gap Calculated?

The Efficiency Gap combines the total of a District plan’s Cracking and Packing choices into a single number. It does this by breaking down the votes wasted and looking at which Party Wasted more, based on how the Districts are drawn.

Who developed the Efficiency Gap?

The Efficiency Gap was developed by Nicholas O. Stephanopoulos and Eric M. McGhee, both Professors at the University of Chicago. Stephanopoulos has worked with the Plaintiffs in the Case who are contesting the Wisconsin Maps.

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