Breaking Down the Supreme Court's Inaction on Gerrymandering - Pacific Standard

Breaking Down the Supreme Court's Inaction on Gerrymandering

Stanford political scientist Bruce Cain offers his thoughts on redistricting commissions and Justice Anthony Kennedy's retirement.
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Visitors walk outside the Supreme Court.

Visitors walk outside the Supreme Court.

Recently, the Supreme Court took a long hard look at partisan gerrymandering, and opted to once again kick the can further down the road.

In the last week, the Supreme Court ruled on three separate partisan gerrymandering cases—cases where state politicians were accused of egregiously rigging electoral districts to dilute votes for the opposing party. The cases included Wisconsin Democrats suing Wisconsin Republicans (Gill v. Whitford), Maryland Republicans suing Maryland Democrats (Benisek v. Lamone), and North Carolina Democrats suing Republicans (Rucho v. Common Cause). In each of the decisions, the Supreme Court avoided making a pronouncement on partisan gerrymandering; all were sent back down to lower federal courts.

To make sense of the tepid rulings, and how the country might eventually be able to successfully stymie partisan gerrymandering, Pacific Standard spoke to Bruce Cain, a professor of political science at Stanford University. During the interview, Cain had especially harsh words to say about one method of calculating gerrymandering, the "efficiency gap," a tool used to measure the number of "wasted" votes in a district and across a state (in a more gerrymandered district, more votes are wasted). He also spoke about his cautious hope for redistricting commissions, and his pet conspiracy theory about his colleagues' taciturn tendencies and Justice Anthony Kennedy.

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We've had three Supreme Court decisions on political gerrymandering cases in the past week. Have any consequential precedents come out of these cases?

No. This is the court telling the redistricting community that they have not yet come up with a standard; what the redistricting community has come up with are measures, like the efficiency gap. The court said: "Well, it's great that you have these measures. But a measure is not a standard."

[Editor's note: A measure is a method of calculating the degree of political gerrymandering. A standard is the range of acceptable levels, as measured by the chosen method. For example, the efficiency gap is one measure, and "15 percent wasted votes" is a standard.]

So the redistricting community needs to develop a standard. Have they agreed on a measure?

There are a lot of competing measures [being considered by the redistricting reform community]. The only advantage to the efficiency gap [proposed by the Wisconsin Democrats in Gill v. Whitford] is that any idiot could compute it. The court had been given much more sophisticated measures in the past. And the court said "We don't understand these measures, give us something simpler."

And so the [plaintiffs in the recent cases] came up with very simple-minded measures. And that's good; simple-minded is good. But there are some problems with these measures in terms of competing values. The efficiency gap punishes plans that have lots of competitive seats, because it assigns all the votes. It only measures inefficiency. You have to go and look at the formula to see it, but it punishes competitive districts.

Why was the efficiency gap promoted by the plaintiffs in Gill, and in the press lately, as a good measure of partisan gerrymandering?

Bruce Cain.

Bruce Cain.

The reality is, people [academics] come up with these measures, and then they fall in love with them, and then they don't openly tell you guys in the press what the disadvantages of these measures are. But the rest of us in the redistricting community have discussed it in private, and we know what the flaws are. But there's a conspiracy among the reform community to not share that information openly because they're very anxious to get Mr. Kennedy, who's on the court, to make a decision before he retires [at the end of July].

The motto in the reform community has been "We'll adopt an imperfect measure and then we'll fix it later." Now you'll start seeing articles that criticize and explain the flaws of the efficiency gap that were not published prior to the Supreme Court decision, because there's a conspiracy to not getting in the way of finally getting a decision on political gerrymandering.

We're being lazy. We should be working on how to figure out how to measure, and to develop a standard. And the best way to do it is at the base level, and the best opportunity is to develop it locally. But you know, you get some lawyers and some reform groups that want to—either out of idealism or enthusiasm—want the courts to [develop a standard]. And the courts are saying: "Well, we're not capable of doing this. You guys have to evolve this."

At least seven states have bipartisan congressional redistricting commissions. Do those commissions currently use qualitative and political methods for redistricting, as opposed to the using a data-driven standard like we've been discussing?

We've learned a lot about how to design commissions, but the one flaw in the design is that we didn't anticipate the political polarization of the population. It comes down to how do you break ties. In these commissions, often the tiebreaker is an independent. But you look at what we know about independents, and they're usually partisan-leaning. For example, in Arizona, the independent tie-breaker is seen as leaning toward Democrats. But if we start to think about trying to develop a standard in advance, then maybe they could innovate on how to create. These commissions are not non-partisan. They're bipartisan. The problem with the Arizona one is you only have one independent. It's possible the whole thing will blow up, and it's possible we won't develop a standard through the commissions, but I think that's our best shot.

The standard is ultimately political. The question is: Who are the political people that make that decision? It is political in the broader sense of the word political. Any time there are competing values between how much fairness you want and how much competition you want, or why do I split this city and not that city, that pits one interest against another and one value against another, is political! And so the process is ultimately political. And it has to be decided politically by somebody. And the court says "We're not a political institution We can't make that choice. You tell us what the values are, and what the rules are, and we'll make a choice." And for a long time, the courts stayed away from redistricting manners because of the political question doctrine. The court said "We're not going to do the job of the legislature." The legislature is where people decide what values they have. And redistricting involves like 20 different competing values.

What are the competing values?

Community of interests. Compactness. Respect for city and county boundaries. Fairness to minorities. Fairness to political parties. On and on and on. And each time, there are tradeoffs between all these different values. And you have to figure out what the order of these different values is.

So that's the way to proceed. It's not to force a decision onto the court knowing it's imperfect and I'll fix it later. The court isn't stupid. They understand that the real problem is coming up with a standard. All this is to say—I think the court did the right thing. The court said: "This isn't ready. You guys come up with a standard, and when you get enough people behind it, then we'll enforce it."

How can we settle on a standard with all these competing values?

There's some exciting stuff happening with big data and the capacity of computation that will change the way we think about redistricting. We're going to be able to simulate millions of different alternate plans, and then measure the parameters of those plans. And then whatever the proposal, we're going to be able to situate that proposal in a universe of all possible plans and say "Exactly how unfair is this?"

Even with all those technical advances and ability to simulate plans—isn't that still just improving the measurement, and not a standard?

Yes, it's a measure, but it's a measure that gives you a context to start thinking about the standard. You're not going to get rid of all the politics, but you can contain the politics to a narrow band. You try to keep it within some limits, so there aren't outrageous efforts to screw the other side. There's no such thing as an optimal plan. An optimal plan just means "I've decided what the values are, and if you disagree with me, too bad. These are my values." There are a lot of different measures of political fairness. So we have to figure out: Are we going to use one of them? Are we going to use all of them?

Will Kennedy's retirement have any effect on the state of political gerrymandering?

This is a good thing in the sense that it removes the temptation to devise legal strategies that are solely designed to entice him as opposed to actually developing a consensus about how to develop a political fairness standard, not just more easy to compute measures.

This interview has been edited for length and clarity.

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