Will the 'Efficiency Gap' End Gerrymandering?

A lawsuit in the politically riven state of Wisconsin suggests a solution for fair re-districting.
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Former state senator Dale Schultz holds his head during a session of the State Senate at the Wisconsin State Capitol in 2011. (Photo: Justin Sullivan/Getty Images)

Former state senator Dale Schultz holds his head during a session of the State Senate at the Wisconsin State Capitol in 2011. (Photo: Justin Sullivan/Getty Images)

Wisconsin is finding itself a bellwether for voting rights issues. In 2013, Republican lawmakers destroyed electronic documents that the courts had ordered be preserved in order to review the fairness of the state's 2011 re-districting process; the documents were deleted, and a hard drive physically damaged, apparently to prevent their review. Government watchdogs and citizen activists have condemned the state's new map and the secrecy surrounding its development, and, in July, a group called the Fair Elections Project filed a lawsuit, Whitford v. Nichol, challenging it. The case describes Wisconsin's map as “one of the worst partisan gerrymanders in modern American history.” It also notes that fewer than four percent of state governments between 1972 and 2010 benefited a single party in the way that Wisconsin's districting plan does. This lawsuit, however, has the potential to impact states well beyond Wisconsin since it offers a way of measuring how fairly a given map treats the two main political parties.

For some time now, voting rights advocates have been struggling to address the new face of voter suppression. While some efforts, such as stricter voter ID requirements, clearly target low-income and minority citizens, others, such as gerrymandering, have a broader reach. As state legislatures re-draw voting district boundaries, in recent years, gerrymandering has returned to the national spotlight. Drawing “safe” districts has been credited with producing intense partisanship in Congress, but the GOP also sees controlling state re-districting processes as the key to keeping a Republican majority in Washington. A “safe” district has had its boundaries drawn so as to ensure that a candidate from a particular party wins. For example, a district drawn to include a voting base that generally casts 60 percent of its votes for Republicans and 40 percent for Democrats will be “safe” for a Republican candidate.

“Traditionally, politics has been the art of relationship-building, and we seem to have lost that as we've become more and more Pavlovian, as things have become more mean-spirited.”

Now that the Supreme Court, in Shelby County v. Holder, essentially struck down the pre-clearance provision of the Voting Rights Act, the Deep South finds itself unfettered in its re-apportionment designs—along with the Midwest and the rest of the country. Yet voting rights advocates point to the increasing frequency of extreme gerrymanders such as Wisconsin's (alongside examples like Florida, Michigan, North Carolina, Rhode Island, Vermont, and Virginia), and suggest that the “efficiency gap” test described in the Whitford case may offer a path forward, ensuring partisan fairness nationally. In Wisconsin, the strife that has rocked the state capitol and the indignation surrounding its complete legislative re-tooling illustrate the worst that can ensue when the electoral game is rigged from the ground up.

“Traditionally, politics has been the art of relationship-building, and we seem to have lost that as we've become more and more Pavlovian, as things have become more mean-spirited,” says Dale Schultz, a retired Wisconsin state senator, farmer, and, now, political organizer. Schultz looks every inch the Wisconsinite: tall, stocky, ruddy-cheeked, and sandy-haired. Yet Schultz has become an unlikely radical in the fight against gerrymandering.

Schultz, a lifelong Republican, has logged hundreds of miles criss-crossing the state with his Democratic counterpart, Tim Cullen. The pair are the co-chairs of a committee that has filed a lawsuit to challenge the state's gerrymandering, but which may contain the seed of a much broader impact, potentially offering a national solution to partisan re-districting.

Schultz and Cullen have known each other since they both served in the state legislature in the 1970s, and both have held the position of majority leader, a commonality that helped foster mutual understanding. On a chilly but dry April day in 2011, as Madison emerged from weeks of protest actions at the capitol, Schultz and Cullen met for lunch. They convened at the Great Dane, a pub and brew house located a block from the capitol building. Cullen had recently returned to Wisconsin after spending 20 days in Illinois with 13 other democratic senators in an attempt to prevent the passage of Act 10, which stripped most collective bargaining rights from public sector unions and prompted the longest labor uprising in United States history.

Over lunch, disheartened by the extreme partisanship they both saw, the political veterans agreed on two issues that they could address together to help turn things around. One of them, gerrymandering, would prove to be one of the most critical issues facing the state in decades. Just two blocks away at the offices of Michael Best and Friedrich, one of the most biased re-districting processes in the history of the U.S. was being plotted in secret.

The way in which the map was then unveiled and pushed through the legislature in nine days with just a single public hearing produced an outcry. Democrats had had no voice in the matter, and Schultz and most of his Republican colleagues saw the full map only when it was revealed just a few days before coming to a vote. While Schultz says it was clear that the map would be slanted toward his party since they held full control of the state government, it didn’t become clear just how slanted it was until later.

“The very first opportunity to see its impact was in the next election,” Schultz explained. “The Republican party managed to not lose a single seat, and we began to sense that something was not quite right. While the initial reaction is, 'Well, we're really doing a great job.' You begin to realize, 'Wait a minute, maybe there's something going on here that's more mechanical than it is people responding to what you've done.'”

Indeed, according to the lawsuit filed, Whitford v. Nichol, Republicans won 60 of the assembly's 99 seats in the 2012 elections, even though Democrats won a clear majority of votes cast. The lawsuit protests that even in an election in which both parties won equal numbers of votes, Republicans would win 63 percent of the assembly seats, with Democrats capturing only 37 percent.

While there have been many lawsuits in the past over partisan gerrymanders, none has managed to convince the Supreme Court. That's where Whitford v. Nichol may bring something new—and crucial—to the table.

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“I think all one has to do is look at the great distrust and angst in the body politic to realize that people have had it with professional politicians who have lost sense of what they were sent there to do, which is to run the government in a fair and reasonable manner, to solve problems,” Schultz says. With statements like this, Schultz seems to embody ideals of independent thought and integrity that so many politicians extol. Claiming the mantle of Republican leaders such as Abraham Lincoln and Teddy Roosevelt, Schultz rejects the Tea Party strain of conservatism that has held the party hostage in recent years, describing it as “the anschluss of the John Birch Society and the Dixiecrats. Yet, despite recognizing that politics is “a team sport,” Schultz says that he found himself holding his ground “and being moved rapidly to the left” within his own party.

Of course, bucking the party line didn't help. Schultz opposed legislation that would have relaxed restrictions on mining in the state, for example. Considering Schultz's commitment to his family's 200 acres in western Wisconsin, it's easier to understand his decision to step away from the Republican team on this.

The rolling hills and small farms, some of them Amish, that surround the Schultz property embody the bucolic ideal that draws visitors to Wisconsin. The Schultz family has held the land on the ridge where his farm sits for over 100 years. In the early 1990s, one of Schultz's cousins operated a dairy farm on the property, but he went out of business, and eventually it ended up with Schultz and his wife, Rachel. Schultz estimates that he, Rachel, and their two daughters have planted 40,000 seedlings on the property since then. The cows, Schultz says, had turned the land into “a billiard table.” Now the plant life holds in the soil and prevents erosion while offering a lush environment for the birds and other wildlife that Schultz enjoys hunting.

Born and raised in Madison, Schultz says he got involved in politics at the age of 12. “At our house, we were expected to read the newspaper and come to the dinner table as a family and be prepared to have an intelligent discussion, and the focus was not always on what you believe but on your ability to do that.” His father was a Progressive and his mother a progressive Democrat, but Schultz was drawn to a different philosophy. “I sort of by accident fell in with Republican ideals, which were very different than what they are now.”

The Wisconsin State Capitol building. (Photo: Karen Bleier/AFP/Getty Images)

The Wisconsin State Capitol building. (Photo: Karen Bleier/AFP/Getty Images)

Schultz came of age at a time when Madison was a hub of student anti-war protests. Tear gas was a regular feature of campus life, and protesters were beaten as well. But the incident that may have most influenced his perspective came in August 1970 when a bomb in Sterling Hall killed a young physics researcher, Robert Fassnacht, working on superconductivity. Fassnacht was the father of two infant daughters and a boy toddler, and Schultz was the family's paper boy.

These experiences from his youth tempered Schultz's outlook during the 2011 uprising over the elimination of most collective bargaining rights for public-sector unions. “I realized how explosive things could be,” Schultz says as he recalls the tumult around Act 10, the anti-union bill that propelled Wisconsin politics into the national spotlight. As the protests in Madison continued over a period of weeks, Schultz spent hours speaking with his constituents at community listening sessions. “I'd stay there until the end, and then I told people if they had any additional questions or if they didn't think I'd answered their comment that they'd given during the meeting, I'd stay extra hours and listen to them, and then I'd get up in the morning and go to the legislature. In my mind, I was fulfilling a campaign promise, being as thoughtful as I could be at a very difficult time for an awful lot of people.”

His compromise proposal, endorsed by the unions, which would have suspended collective bargaining for two years and instituted higher contributions for state workers' health insurance and pensions, was rejected. Ultimately, although he says his colleagues were respectful and some had misgivings, Schultz cast the sole dissenting Republican vote against Act 10 in the Senate.

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Over the holiday season in late 2013, Schultz and his family discussed whether it made sense for him to run for office again. He was already one of the longest-serving members of the state legislature, and the family decided that it was time to retire. Ironically, this decision seems to have freed Schultz to become yet more active around fair voting issues.

Schultz and Cullen became co-chairs of the Fair Elections Project in late spring, a few months after Schultz's last day in the legislature. The lawsuit their group is shepherding asserts that Wisconsin's 2011 re-apportionment violates the Equal Protection Clause of the 14th Amendment, arguing that the state's partisan gerrymandering violates the rights of Democratic voters by discriminating against them because of their political beliefs. Invoking comments from U.S. Supreme Court justices on the possibility of finding a fair approach to districting, the case sets out a test for “partisan symmetry” that examines the “efficiency gap,” or how many votes each party wastes in an election, as the solution.

Political scientist Eric McGhee and University of Chicago law professor Nick Stephanopolous have described how the efficiency gap measure can analyze to what extent a state's districts have been drawn to benefit one party by calculating how effectively Democrats and Republicans convert votes into seats. The measure examines how many votes have been “wasted” compared to the total number of ballots cast. “Wasted” votes are votes cast in excess of the number needed to win, or those cast for a losing candidate. For example, if a Democrat were elected with 80 percent of the vote, 30 percent of the Democratic votes cast, minus one, would be “wasted” along with all the Republican votes cast in the race. This would speak to a “packed” district, that is, a district in which voters of a given party had been crammed together, ultimately confining their impact to a limited area.

The results in recent years have been clear to Wisconsin residents. During the current legislative session, for example, bills have been passed that remove the limit on the state's educational voucher program and that draw money for this program from public education funds before public schools are able to do so. For Schultz, this raised concerns since he lives in a rural area where the vast majority of the population depend on public schools. The Associated Press reported that 75 percent of the program's new enrollees were already attending private school, suggesting that in spite of the rhetoric surrounding “school choice,” the move primarily benefited middle-class families. Yet the Republican-controlled legislature has also curtailed local regulatory authority, and handed the University of Wisconsin system a $250 million budget cut while promising a comparable amount of public support to develop a new basketball arena in Milwaukee (partially owned by long-time Scott Walker donor Jon Hammes).*

Schultz says he'd like to see the group bring a lawsuit in a state with a Democrat-slanted gerrymander. “But I wasn't about to preclude my involvement because there wasn't something in a state to undo something the Democrats have done because right is right.” He argues that people want to judge politicians on their ideas and proposals and says that what's needed is a “re-birth of citizenship. We need to breathe some life into the grassroots of the parties rather than allowing consultants and others to manipulate the process.”

“You shouldn't have to worry about manipulating the process to win. And you should be smart enough to realize why people are getting increasingly angry,” Schultz says. “People are not dumb. They're smart. They know when politicians are simply interested in increasing their own power or holding power rather than when they're there to serve them.”

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*UPDATE — November 12, 2015: This article has been updated with fuller information about public funding to the Milwaukee basketball arena.

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