Gill v. Whitford [SCOTUSbrief]
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Gill v. Whitford [SCOTUSbrief]


​Gill v. Whitford is a case that attempts
to answer a question that’s about 30 years old. How do you define a gerrymandering? Gerrymandering is a way to draw district lines
to help your party and hurt your opponent. The term gerrymandering is based on the name
of a founding father named Elbridge Gerry. Elbridge Gerry created a prototypical gerrymandering
in Massachusetts that was lampooned in a cartoon in 1812. It looked like a salamander wrapped around
the district that was to be divided up. So when you make a portmanteau word of salamander
and Elbridge Gerry’s last name, you get Gerrymander. Gerrymandering has been practiced by both
parties, at least since the original gerrymander in 1812. In a gerrymander, the object of the game is
to make the other party lose more seats. In most states, in this country, district
lines are drawn by state legislatures. And state legislatures, of course, are people
with partisans. What the technique involves is to take your
opponent’s partisan and stack them in just a few districts where they win overwhelming
majorities, so that your party can win more seats by smaller majorities. This dispute has roots back to 2011. In that year, the Republicans won both Houses
of the Wisconsin legislature and the Wisconsin governorship for the first time in 40 years. They proceeded to draw new districts. These districts were a classic gerrymander. They were designed to hurt the Democrats,
and they did. In 2012, with 49% of the votes, Republicans
managed to garner 61% of the seats in the assembly in Wisconsin. So with a minority of the votes, they managed
to get a majority of the seats. The next season in 2014, the Republicans won
52% of the votes, so they did have a majority, but they garnered 64% of the seats in the
legislature. What the parties in this case claimed, is
that the wasted votes, their party, the Democrats, so exceed the wasted votes of the party that
drew the lines, the Republicans, that there’s a constitutional violation. According to the plaintiffs and according
to a lot of social scientists who agree with the plaintiffs, a wasted vote is basically
any vote cast by a majority, which is greater than 50% plus one, needed that’s needed to
win. It’s wasted in the sense that it’s not necessary. It’s also any vote cast by the losing minority,
which is basically all the votes that they cast in a district where they lose. Now, it’s very clear under Supreme Court constitutional
law, that there is no right to proportional representation. No one in this country has a right for their
party to get 60% of the seats, because 60% of the population voted for it. Well if that right doesn’t exist, then how
can this case go forward, because the plaintiffs have done is say that people have a right
to a sort of altered proportional representation based on their estimates of what the party
should win if things were fair. And this, in the view of some, in my view,
is piling improbabilities on top of improbabilities. How does one define what party should be expected
to win in a hypothetical world where there’s no gerrymandering? There’s no clear answer to that question. What happened in this case in the district
court, was that by a two to one margin, the district court accepted the plaintiff’s claim. They said that the constitution is violated
with the intent to severely impede or impair the effectiveness of voter’s votes on the
basis of their affiliation with other voters. If the Supreme Court goes along with the district
court’s ruling, it would result in an explosion of litigation. Those cases would be ugly and contentious,
and difficult to resolve, because there is no clear test coming out of this case to say
exactly what one looks at, in saying that one set of districts is a gerrymander, and
the next set of districts is not. Every district line is put down with an intention,
so how do you distinguish between extremely bad gerrymander that violates the constitution
and run of the mill gerrymandering, where you’re trying to hurt your opponent, which
is what everyone tries to do.

11 Comments

  • JacksonPolyp

    How can you say plaintiff's success would result in no clear test or distinction between good and bad gerrmandering when the plaintiffs are offering just that by way of their efficiency gap formula?

  • Ray J Wallin

    It has been only recently shown that the same Efficiency Gap numbers can be calculated using a seats-votes equation, which means it is a measure of proportionality, which means it most likely will not be allowed in the Supreme Court trial. See:
    https://www.youtube.com/watch?v=Ei4It0-ylT4&feature=youtu.be

  • olov244

    just because both parties do it doesn't make it right. we know the percentages of those who vote, if the results are far enough off then it is reasonable to think that they have been manipulated. my state is pretty much 50/50 dem/republican, but republicans hold veto-proof majority, it's not an accurate representation of the people of the state's wishes imo. shortest split line is one way to cut through the bs since neither side can put their personal greed aside for the good of the state/country

  • Geary

    "Actually anti-democratic practices clearly not intended but technically not illegal are good, because they benefit the party I like."

  • Nathan .Guerrero

    So to him, when less people desired a certain party and that party's views, that party with less favorable views to the state population should be able to get a 2/3 majority. Where the hickity heck is the representation that this country was based on in his mind? Good video, most definitely, but that skew of reasoning seems inherently undemocratic, even if it was historically legal.

  • Ashish Xiangyi Kumar

    It's not proportional representation which the plaintiffs are asking for: it's voting symmetry: i.e., a reasonable likelihood (taking into account muddying factors such as geography, which computers can isolate by generating thousands of random maps that fulfill all the usual districting requirements, like one person one vote, and seeing what kind of asymmetry these non-partisan factors tend to generate) that:

    1. If Democrats get, say, 40% of the votes and 35% of the seats, then
    2. If Republicans get 40% of the votes, they'll also get 35% of the seats.

    and:

    3. If Republicans get 50% of the vote and 65% of the seats, then
    4. If Democrats get 50% of the vote, they'll also get 65% of the seats.

    It does not matter what the correspondence between voting proportion and legislative dominance is, so this is not at all like proportional representation, which demands that correspondence between % of votes gained and % of seats gained be exact. Instead, it's fairness that's being asked for.

    This does not at all mean the legal issue is less complex. But this presentation is greatly simplifying the issue, and straw-manning the relevant sociological science somewhat (a natural tendency for lawyers not well-versed in statistics, but one that probably should be resisted, yeah?)

  • Vicky Paulson

    And Walker did just that in Wisconsin. Even though he has been court ordered to change it, he will not. He's running, again in Wisconsin. If he fixes his gerrymandering, he may loose the election.

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