Democrats are challenging Wisconsin’s legislative gerrymandering before the Supreme Court in a case which could hold much more expansive ramifications. A three-judge federal court in Wisconsin struck down assembly maps as an “unconstitutional gerrymander” which was intended to disproportionately burden the representational rights of Democratic voters in the state.
The Supreme Court’s historic position is that politicians cannot draw districts that deny representation on the basis of race, but the court has never outlawed partisan gerrymandering, In a 2004 case from Pennsylvania, the late Justice Antonin Scalia wrote for the majority that claims of partisan gerrymandering should never be reviewed by the court. Justice Anthony Kennedy ultimately sided with Scalia but wrote a slightly altered opinion, saying, “I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Kennedy’s opinion reads as though he agreed with Scalia that there was no metric by which to measure partisan gerrymandering, but it also reads that if there were some way to do so — some way to prove it — he would believes the court should hear such a case.
Nicholas Stephanopoulos of the University of Chicago and Eric McGhee of the Public Policy Institute of California developed a metric called the efficiency gap, in which data mining is used to count the number of wasted votes for a party, which is essentially what happens when a voter of a particular party has their vote rendered meaningless because they find themselves, sometimes suddenly, in either a deep-blue or deep-red district.
Stephanopoulos and McGhee have said that districts in Wisconsin “are the most extreme gerrymanders in modern history.”