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Is gerrymandering unconstitutional?

The U.S. Supreme Court’s decision this summer to hear a Wisconsin gerrymandering case could change how legislative districts are drawn in Ohio and elsewhere, an Ohio State expert says.

In recent years, the Supreme Court has decided three major cases involving the practice of racial gerrymandering — the use of race as a predominant factor in drawing a district’s lines.

The Wisconsin case, however, raises the issue of partisan gerrymandering — the manipulation of district lines to favor one political party.

Specifically, the court will hear arguments in October in a case in which a federal district court struck down Wisconsin’s Assembly districts as an unconstitutional partisan gerrymander in violation of both the First Amendment right to associate and the Fourteenth Amendment right to vote.

“This is the strongest partisan gerrymandering case to ever come before the Supreme Court,” said Ohio State Professor Daniel Tokaji, a national authority on election law and democracy. “It’s a very important case.”

Tojaki expects the decision will hinge on the views of Justice Anthony Kennedy, long considered the swing vote in many critical cases facing the oft-divided court. In previous gerrymandering cases, Kennedy has “indicated some degree of openness” to challenging gerrymandering under the First Amendment, according to Tokaji.

Opponents of the Wisconsin gerrymandering effort are using a new metric to measure the partisan gerrymandering — a mathematical model known as “the efficiency gap.”

This model counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats. (Any vote cast for a losing candidate is considered wasted, as are all the votes cast for a winning candidate in excess of the number needed to win.) The efficiency gap was cited as “corroborative evidence” by the lower court that struck down the Wisconsin map.

While gerrymandering has been around since the earliest days of the American Republic — the term stems from the partisan state senate maps drawn in 1812 by Massachusetts Gov. Elbridge Gerry — Tokaji said data analytics technology has sharpened the impact of the mapmaking.

“Technology makes it possible to gerrymander districts much more effectively than in centuries or decades past,” Tokaji says.
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The Ohio State professor says the looming question for the country is what the impact of heightened gerrymandering has been on America’s political system.

“Do we really think the political system right now is working well?” Tokaji asked. “Wherever your views fall on the ideological spectrum, there are not many people who would answer in the positive.”


What it could mean for Ohio

Tokaji expects the decision in the Wisconsin case to have an impact in other parts of the country, including the battleground state of Ohio, where both congressional and state legislative maps were drawn to benefit GOP candidates.

Recent Associated Press analysis of the maps — drawn by majority-party Republicans in 2010 — found that Republicans won two more U.S. House seats and five more Ohio House seats than they would have under a neutral map.

For example, Ohio House Republicans received 56 percent of the votes cast for 2016 state representative races but received 66 percent of the seats. In 2016 congressional races, Republicans received 58 percent of the votes but won 75 percent of the seats.

In 2015, Ohio voters approved changes to the way majority-party lawmakers will draw state legislative districts the next time, in 2021. In a historic compromise between Statehouse Democrats and Republicans, the new rules give the minority party a more powerful say in the line-drawing process.

Tokaji applauded Ohio’s bipartisan effort, saying it was a “remarkable accomplishment,” but notes that congressional redistricting is slated to remain under the control of whichever party controls the legislature after the 2020 elections.

“A much fairer system would be for a bipartisan or non-partisan commission to draw the lines,” he says.