Re: Another critique of the ‘efficiency gap’

Two months ago, “The Locker Room” highlighted a Commentary magazine article that questioned so-called “efficiency gap” analysis as a tool for helping judges determine whether lawmakers have engaged in “too much” partisan gerrymandering when they draw election district maps.

The latest issue of Commentary features my letter responding to the article from Syracuse law professor Tara Helfman. The original version of the letter is printed below. Follow this link for the slightly edited Commentary version of the letter, along with Helfman’s courteous and informative reply.

Thank you to Tara Helfman for highlighting recent developments in the complicated struggle over the future of electoral gerrymandering (“Is the Gerrymander on Its Way Out?,” January 2017). Some additional facts might help readers cultivate an even better understanding of the issue.

First, Helfman notes U.S. Supreme Court justices’ “palpable” frustration during oral argument over recent redistricting cases from Virginia and North Carolina. To some extent, those justices have only themselves to blame. That’s because they have not set a clear standard differentiating an acceptable amount of partisanship in drawing election maps from unconstitutionally excessive partisanship.

Helfman’s article notes that the Supreme Court “declined to invalidate” a “meandering Pennsylvania redistricting map” in 2004. Left out of her analysis was the fact that five of the nine justices might have struck that map down had they agreed on a means. While the court’s so-called conservative bloc agreed with the late Justice Antonin Scalia that partisan gerrymandering was a political issue that courts ought not address, the opposing liberal bloc disagreed. It proposed potential tests for determining whether a partisan gerrymander was unconstitutional.

Perennial swing vote Anthony Kennedy muddied the constitutional waters by agreeing with the liberals that courts could determine whether an election map was unconstitutionally partisan, while simultaneously rejecting all of their proposed tests. So foes of partisan gerrymandering have spent the past decade searching for a different test that would win Kennedy’s fifth vote to their cause.

Elena Kagan didn’t sit on the Supreme Court in 2004, so her recent quip that “if it’s politics, it’s fine” threw a curveball at gerrymandering critics. If Kagan follows Scalia’s lead, then partisan gerrymandering might end up with a longer legal shelf life.

Still, it seems likely that Kagan, Kennedy, and the rest of the court will have a chance at some point to address directly what Helfman has described as a potential “holy grail of political law,” a mathematical formula known as an “efficiency gap.” That EG served as the basis for a federal court throwing out Wisconsin’s latest election maps, and the same type of analysis could play a role in my home state of North Carolina.

It’s important to know that the McCrory v. Harris case — which Helfman analyzes with skill — deals with “old” N.C. congressional districts. The state conducted its most recent congressional elections under maps drawn in 2016 in response to the lower-court ruling in McCrory. It’s hard to project how a high court ruling in McCrory will affect North Carolina’s maps moving forward, since the state General Assembly already has completely redrawn the two districts struck down as unconstitutional racial gerrymanders.

Before addressing the current election maps, though, it’s worth noting that both the NC-1 and NC-12 challenged in McCrory have long lives in state political history. Democrats who controlled the General Assembly in the early 1990s drew both districts to comply with the George H.W. Bush Justice Department’s order that North Carolina draw two majority-minority districts. At the time, the snake-like NC-12 and the octopus of NC-1 were designed to elect minorities while enabling Democrats to continue winning as many of the state’s other congressional elections as possible.

When Republicans took control of the General Assembly after the 2010 legislative elections, they maintained the same basic shapes of NC-1 and NC-12, secure in the knowledge that both districts had survived two decades of previous court challenges and reviews from both GOP and Democratic federal Justice Departments.

North Carolina used some form of the now unconstitutional NC-1 and NC-12 in every state congressional election conducted from 1992 to 2014. Only after Democrats’ ideological allies were able to convince federal judges that Republican racial gerrymandering was somehow less constitutional than Democratic racial gerrymandering did those districts disappear.

And disappear they have. Faced in 2016 with a federal court order to scrap NC-1 and NC-12, state lawmakers decided to draw their latest congressional election maps with absolutely no consideration of voters’ race. Instead, mapmakers spelled out clearly — and publicly — that the maps eventually used for 2016 elections were designed to ensure a partisan advantage for the GOP.

The McCrory court found nothing wrong the maps. But that didn’t stop the N.C. Democratic Party, current and former Democratic legislators, Common Cause, and the League of Women Voters from filing a pair of lawsuits challenging the new, explicitly partisan maps. The LWV suit specifically cites the “holy grail” EG analysis in calling for courts to throw out North Carolina’s latest districts.

My employer is a free-market, limited-government think tank that focuses on public policy in North Carolina. We are members of a bipartisan coalition that supports election redistricting reform. However, we are not parties to any redistricting lawsuits. And I personally take issue with lawsuits asking courts to throw out maps drawn under longstanding judicial precedents permitting partisan gerrymandering (Kagan’s “if it’s politics, it’s fine” standard). North Carolina deserves a better redistricting process. It does not need to have that process mandated by — Helfman’s appropriate words — “judicial fiat.”

Helfman’s article does a great job spelling out the intricacies of the gerrymandering issue. I hope this letter conveys that the level of complexity is even greater than Commentary readers might have imagined.

Mitch Kokai
Senior Political Analyst
John Locke Foundation
Raleigh, N.C.

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