Schneider: Court makes a bad bet on redistricting case

It goes without saying that Donald Trump’s victory in Wisconsin nearly two weeks ago was unexpected.  But according to a three-judge federal panel who just declared Wisconsin’s legislative maps unconstitutional, Trump’s stunning victory would have been all but impossible.

In striking down maps passed in 2011 by state Republicans, the federal panel scoured the U.S. Constitution and created an entirely new protected class of voter: Democrats who think they should be represented by a Democrat. Even though the United States Supreme Court has previously looked at the issue of partisan redistricting and proactively denied the existence of such a category, these two judges have now spun a new standard out of whole cloth, upending a perfectly legal reapportionment process.

In breaking with settled law, the judges play the role of political prognosticators, determining that the outcome of too many Assembly districts is predetermined. But perhaps this would be news to Hillary Clinton, who appeared to be enjoying a six-point lead in the polls leading up to election day. In fact, if the entire state of Wisconsin were a legislative district, the judges would have considered it a safe Democratic seat in presidential election years, as no Republican had won it since 1984.

But people aren’t computers, and their votes are often affected by a complex mix of candidate personalities, issues and national trends.  As the Journal Sentinel’s Craig Gilbert noted on the day after the election, 13 counties in Wisconsin have voted for Donald Trump, President Barack Obama twice, Gov. Scott Walker three times, Senate Democrat Tammy Baldwin in 2012 and Senate Republican Ron Johnson in 2016.  This year, Trump won 22 counties that Barack Obama won just four years ago, completely undermining the court’s contention that voters are set in stone.

Redistricting ruling could help, hurt both parties

In their lawsuit, Democrats complained that the number of seats they were winning in the Assembly was disproportional to the total statewide Democrat vs. Republican vote.  For instance, they note that in 2012, Republicans received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly. In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats.

But the idea that the number of legislative seats held by a political party has to be commensurate with the statewide vote is bad math, out of touch with reality and contradicts precedent.

For one, voters don’t vote for Assembly seats with the statewide math in mind — they vote for the candidate who will best represent them in Madison.

Further, Democrats in Wisconsin are typically packed into dense geographic areas (Milwaukee, Madison), leading to many blowout wins.  A good number of Democrats win large victories without a Republican challenger, which artificially inflates their share of the statewide vote. In 2012, Milwaukee saw historic voting levels, which distorted the math in their favor even more.  If hard cases make bad law, historic turnouts make for even worse legislative maps.

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In order to prove apportionment bias, Democrats brewed up a formula they called the “efficiency gap,” which dissenting judge William Griesbach called an “unhelpful and dangerously misleading” metric for gauging actual electoral disparities.

Put simply, the “efficiency gap” measures how many votes a party “wastes” — in theory, the fewer votes a party “wastes,” the easier it is for them to translate their votes into legislative seats.  Democrats say Republicans enjoyed an efficiency gap advantage of 13% in 2012 and 10% in 2014.

But even their own standard fails to show anything nefarious was afoot.  Democrats glide right by the fact that the maps in place in the previous decade — maps drawn by courts, not by partisans — produced an average efficiency gap of 7.6%, reaching a high of 11.8% in 2006. Yet, miraculously, no lawsuit was forthcoming until Republicans took full control of state government.

Were the 2011 maps drawn to help Republicans?  Of course they were — as they always have been.  But the U.S. Supreme Court has rarely been troubled by the fact that maps are drawn by politicians.

"The mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm," the Supreme Court wrote 30 years ago in upholding an Indiana map even more aggressive than the one currently in place in Wisconsin.  While the U.S. Constitution prevents the dilution of voting power based on race, there is simply no such protection for ideology.

And as the recent election shows, that ideology switches from election to election, from candidate to candidate.  Which simply proves that judges make for bad political pundits.

Christian Schneider is a Journal Sentinel columnist and blogger. Email cschneider@jrn.com. Twitter: @Schneider_CM