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Gerrymandering: Do you know it when you see it?

Gerrymandering is ugly business; there’s no getting around that. The question pending at the U.S. Supreme Court, and in two federal lawsuits filed in Georgia, is whether judges can impose a remedy that, to borrow from James Madison, is not worse than the disease.

As things stand, it doesn’t appear so.

Let’s start with the Georgia cases. Plaintiffs say the state House district map, which the GOP-controlled General Assembly redrew in 2015, violates the Voting Rights Act. While they claim racial discrimination, it’s plain they are motivated by partisanship.

The 2015 bill altered 17 House districts, including a pair in Gwinnett and Henry counties where GOP incumbents narrowly won re-election in 2014. Bill sponsors say they were acting on requests from lawmakers in both parties. Plaintiffs say the bill weakened minority voting strength.

But their exact language, as reported in an AJC news article about the second suit, which was filed Oct. 3, drags partisanship into the mix. The bill, the plaintiffs say, “specifically targets districts where white Republicans have become increasingly vulnerable to challenge by African-American Democratic candidates, moving voters in and out of House districts based on their race so as to shore up the incumbent Republicans’ prospects in future elections.”

To the extent impure motives may have been at play, the operative words are not “white” and “African-American,” but “Republicans” and “Democratic.” It may be a shame “white” and “Republicans” are (in the aggregate) political synonyms in Georgia, as are “African-American” and “Democratic.” But it doesn’t violate the Voting Rights Act.

That brings us to partisanship, and a case out of Wisconsin that coincidentally was argued Oct. 3 should be instructive about the Georgia map’s fate.

At issue in the Wisconsin case is the idea gerrymandering is not only unseemly but quantifiable — and thus subject to the kind of legal test courts use to evaluate legislative behavior.

The Wisconsin plaintiffs claim gerrymandering can be measured by an “efficiency gap,” which purports to tell us if the number of seats a party wins is justified by the total votes cast for the party. The gap is expressed as a percentage: e.g., a party might win 10 percent more seats than its vote count suggests was fair.

The problems with this approach are manifold. The standard the Wisconsin plaintiffs propose, barring maps with efficiency gaps of more than 7 percent, would implicate between one-third and one-half of all state legislative maps drawn in the past 45 years. Unelected judges would be embarking on a massive intervention into a legislative process.

As the defendants point out, even the state’s map from the 2000s would have failed the 7 percent test in three straight elections — and it was drawn not by legislators, but by judges.

Which vote count should be used? Many state legislators go unchallenged, and not always because of gerrymandering; often, the other party knows it has no chance even in a fairly drawn district. Such races skew the vote totals. Should we use statewide results instead? Which ones? In Georgia last year, Republicans won 51 percent in the presidential election, 55 percent in a Senate race, and 67 percent in a Public Service Commission race. Which is their “real” level of support?

Ultimately, the most honest observation about gerrymandering echoes U.S. Supreme Court Justice Potter Stewart’s famous remark about obscenity in the 1964 Jacobellis v. Ohio case: “I know it when I see it.” That didn’t suffice as a legal standard for barring obscenity. It’s no more workable for gerrymandering.

Kyle Wingfield writes for The Atlanta Journal-Constitution. Reach him and read more at www.bit.ly/KyleWingfield.