By Ramesh Ponnuru
Democrats cluster, Republicans disperse.
In our political system, dominated as it is by single-member legislative districts, that geographic pattern gives Republicans an advantage. Democrats went to the Supreme Court on Tuesday to try to change that. Their frustration with our system is understandable. The court should still tell them no.
The Democrats claim to be doing something different. They say they merely want the high court to declare that especially egregious examples of gerrymandering violate voters’ rights.
They are trying, like all litigants before the court, to attract the vote of Justice Anthony Kennedy. In previous cases, he has written that there is no constitutional guarantee of proportional representation. District lines don’t have to be drawn so that a party that wins X percent of the votes in a state also wins X percent of seats in its legislature. But he has also suggested that a gerrymander could violate the Constitution. He has been looking for a standard that judges can use to distinguish between permissible and impermissible gerrymanders.
The plaintiffs in the current case, against Wisconsin’s district lines, think they have found one. It’s based on what they call the “efficiency gap.” In a gerrymander, the dominant party typically tries to distribute its voters efficiently, so that it gets the most seats for its votes. It achieves this goal by packing the other party’s voters into a few districts.
Republicans try to ensure that a lot of Democrats end up either voting for losing candidates or voting superfluously for winning ones. The theory behind the lawsuit is that if one party’s voters are “wasting” their votes significantly more than the other party’s voters, the courts should step in.
Taking the efficiency gap as a measure of gerrymandering would, however, lead to some odd results. It can treat competitive elections as more problematic than lopsided ones. A party suffers more “wasted” votes in a district where it gets 49.9 percent of the vote — since all of them count as wasted — than in one where it gets 25 percent or 75 percent.
Also, the efficiency gap isn’t just a function of how state legislatures draw district lines. It’s also a function of where Democrats and Republicans live. Democrats are more densely concentrated in urban areas.
When districts are drawn to be compact and contiguous, that pattern is naturally going to lead to some heavily — inefficiently — Democratic districts. The larger the legislature, and the smaller the districts, the worse that problem is going to be.
Using the efficiency gap as a measure assumes that proportional representation is the ideal: If the percentage of Democrats in seats matches the percentage of Democratic votes, there’s no gap. But the court has repeatedly stressed that proportional representation isn’t the constitutional baseline. The efficiency gap is just a way to sneak that rejected notion through the back door.
The Democrats can try to get more states to adopt redistricting by nonpartisan commission. They can even push for proportional representation. There are reasonable arguments for it. It’s just not the system that our country has ever adopted.
The legal claim advanced in the case — that the First Amendment, in protecting the right to free association, blocks Wisconsin’s gerrymander — is implausible in the extreme. There’s no amendment to the Constitution that gives anyone a right not to have his vote wasted — or gives one group a right not to have votes wasted at higher rates than another group.
If Justice Kennedy decides he wants to reserve the right to second-guess legislatures’ redistricting decisions, he might not like the results. The courts will be inundated with new cases after the next census, as the losing party in each state sees new opportunities to get courts to intervene on its behalf. To prevent that flood, the court should at least rule that using traditional criteria to draw district lines — compactness, respect for county lines, and the like — is unquestionably constitutional.
But it would be better still for it to admit that the court’s quest for a constitutional principle to adjudicate gerrymandering has led it nowhere, and quit trying.
Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.