Ray Wallin explains in a Washington Examiner column why the efficiency gap fails to live up to its billing as a mathematically precise tool for determining whether an election map is “too partisan.” The efficiency gap plays a critical role in the Gill v. Whitford redistricting case from Wisconsin that heads to the U.S. Supreme Court next month.
Since 2012, experts have been brought in, historical data has been mined, and Wisconsin has been rated on the gerrymandering scale, all to prove what the people of the state already knew: There was a disparity in the seats-votes percentages.
If the Wisconsin election had turned out even, where the percentages matched, no hands would have waved, no accusations would have been made, no analysts would have been called up, and no lawsuit would have been filed, no matter how the districts were drawn. Gerrymandering lawsuits are all about seats and votes, and this presents a problem when preparing a case.
The problem is, an argument based on seats-votes percentages is not allowed in the courtroom, because it implies that proportional representation is a constitutional right. In reality, this just isn’t so. Lawyers are left to find other methods to prove gerrymandering, and this is where the “efficiency gap” comes in.
Skirting the proportional representation argument, the efficiency gap frames elections in terms of an imbalance of wasted votes instead of an imbalance of seats and votes. Via these wasted votes, the efficiency gap became the glue that held the plaintiffs’ case together throughout the Whitford v. Gill trial in the lower court. It was referenced in the court’s opinion over 250 times, and since the decision, it has been written about in nearly every major newspaper and online news source in the country.
The efficiency gap has not only won over judges and editors, but scientists too. Over the past few years, analyst after analyst has used “wasted votes” to measure gerrymandering in every state in the union, in this century and the last. The constant drumbeat of wasted votes has been the perfect marriage of science and politics.
Only in the past few weeks has it been shown that the efficiency gap is not quite what it appears. The unfortunate fact is, it can be calculated by using only seats and votes. That makes it merely another argument based on proportional representation, and thus something that will not likely be allowed back inside a courtroom, including the well-known one just a block east of the Capitol Building. This lays the Whitford v. Gill case bare, and it suddenly looks all too similar to the Veith v. Jubelirer gerrymandering case that was struck down by the Supreme Court in 2004.
