New Court Case May Dramatically Impact Alaska Redistricting

A federal court decision striking down gerrymandered legislative districts in Wisconsin could have major impacts in Alaska over the next 15 years.

Here is how Slate.com reported the decision and it’s national impacts:

“a federal district court ruled that Wisconsin’s hyperpartisan gerrymander violates the U.S. Constitution. The three-judge panel’s 2—1 decision marks a turning point in the way the judiciary evaluates gerrymandering: Never before has a federal court invalidated a gerrymander for providing an unfair advantage to one political party. If the Supreme Court affirms the decision–and the ruling appears to be catered toward the idiosyncratic constitutional philosophies of Justice Anthony Kennedy, who could be the deciding vote–it will overhaul congressional maps across the country and fundamentally alter representation in the United States.”

“The courts have struck down race-based gerrymanders as a violation of equal protection–but until now, they have consistently held that nakedly partisan gerrymanders do not by themselves pose a resolvable constitutional problem.That’s because of a muddled Supreme Court decision in 2004 called Vieth v. Jubelirer. In Vieth, five justices agreed that partisan gerrymanders are likely unconstitutional. But Justice Kennedy refused to actually strike them down. Kennedy wrote that extreme gerrymanders may unconstitutionally burden the “representational rights of voters,” but that there was not yet any “manageable standard” by which to assess whether a gerrymander ran afoul of the Constitution. He hoped such a standard might “emerge in the future,” leaving the door open to a future challenge.”

“That standard appears to have emerged. In an opinion written by Judge Kenneth Ripple, a Reagan appointee, the federal district court concluded that Wisconsin’s gerrymander violated voters’ right to freedom of association and equal protection under the First and Fourteenth Amendments. The Constitution prohibits a redistricting scheme, Ripple wrote, when it is intended to impede the effectiveness of a citizen’s vote based on her political affiliation; does, in practice, dilute that vote; and cannot be justified on other legitimate grounds.”

“How can courts determine whether a gerrymander excessively dilutes votes? Simple, Ripple explained: They can use a mathematical formula called the efficiency gap. As the New York Times explains it:

The formula divides the difference between the two parties’ “wasted votes”–votes beyond those needed by a winning side, and votes cast by a losing side–by the total number of votes cast. When both parties waste the same number of votes, the result is zero–an ideal solution. But as a winning party wastes fewer and fewer votes than its opponent, its score rises.”

“A fair redistricting scheme will create few wasted votes and thus an efficiency gap near zero. The more partisan the gerrymander, the higher the efficiency gap; a review of gerrymanders over the last four decades revealed that an efficiency gap of 7 percent will entrench the majority until new districts are drawn. The current Wisconsin gerrymander results in an efficiency gap of up to 13 percent.”

Right about now Democrats reading this are probably internally shouting for joy (because to do so out loud would be weird). After all, it’s Republicans who have a nasty reputation nationally for gerrymandering districts and disempowering voters. But not so fast, this decision is actually far more likely to hurt Democrats in Alaska than it is Republicans.

Here is how…

We asked our friend Patrick Race (@alaskarobitcs on Twitter) to use the formula listed for the efficiency gap on the Alaska 2016 general election results as they stood last week. Here is what he found:

State House Races

house-1 house-2

State Senate Races

senate-efficiency

Now, we’ll be the first to acknowledge that such an analysis needs to be done over multiple elections to be definitive, but this gives us a good idea of where things generally stand this year.

It is also worth noting Race calculated the efficiency gap both considering non-partisan candidates as Democrats, which they many times really are and as wholly separate and truly not fitting with either party. Sometimes independents really are independent. It happens.

His dual calculation allows us a good idea of the potential range of the efficiency gap, depending on which way you view such candidates.

As you can see, state house races wasted relatively few votes, scoring between 1.47% and 3.64% in the efficiency gap. Senate elections were a different story. They ranged between a 2.64% and a 12.62% gap.

The results are greatly influenced by the large number of senators who faced no general election opponent. Of the 10 senate districts up for election, five, or a full half, had no competitive general election race. One could say that skewed the numbers, however a counter argument could be made that senate districts were paired in such a partisan manner that a Republican can’t beat a Democrat in Senate Seat J (Downtown Anchorage) and a Democrat can’t win in Senate Seat D (Wasilla-Big Lake) which is why there was no competition. By this argument, the large efficiency gap for senate races accurately reflects their highly partisan construction.

The key takeaway from these results is the fact that in both house and senate races the efficiency gap skews significantly in Democrats favor. That means Republicans wasted more votes than Democrats did. That waste is bigger in senate races than the house, but still in the same general direction, in Democrat’s favor.

That is bad news for Alaska Democrats. Why?

The 2013 redistricting plan we are currently operating under was a strictly Republican-governed operation (more accurately former Alaska GOP Chairman Randy Ruedrich governed). The resulting plan did Democrats no favors. It succeeded in delivering overwhelming Republican-dominated majorities in both the State House and State Senate. Even this year’s bipartisan majority in the State House required three Republicans to cross party lines to make it possible.

Even with that Republican-friendly redistricting process, the efficiency gap suggests Republicans are having their votes wasted more than Democrats. That means if Republicans retake the Governor’s office in 2018 and retain control of the State Senate, again giving them control of redistricting, the GOP will have a powerful argument for drawing an even more Republican-friendly map.

If, however, Democrats get their guy or gal in as governor and either hold on to one body of the Legislature or get a favorable appointee to the Alaska Redistricting Board from the Chief Justice of the Alaska Supreme Court, then they will control redistricting. In that case, they could easily draw a map that gives them friendlier house districts and pairs senate districts in a manner that almost guarantees a 50-50 partisan split in that body for the coming decade.

To do that, though, they would have to draw and pair districts in a manner that wastes fewer Democrat votes and wastes more Republicans ballots. The efficiency gap, which already skews away from Alaska Republicans, would explode, and Republicans would have good legal ground for getting such a map thrown out by the courts.

Sorry, Democrats…It’s math.

This decision by the U.S. Supreme Court is no slam dunk, so it is entirely possible the efficiency gap will never be implemented as a legal standard.

And we freely acknowledge our examination of it here is far too cursory. It leaves out previous election data and doesn’t take into account what political parties could do to manipulate the formula. For instance, both parties could recruit people to run in every single legislative race in the next two election cycles. That would drive down their opponent’s wasted vote totals and raise their own.

If the efficiency gap does become a new legal standard in reapportionment, however, folks had better pay attention, it could determine more than your own vote does how you are represented in state government for decades to come.

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