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  • Writer's pictureMario Nicolais

Is there such a thing as efficient political gerrymandering?

If you can’t beat them, draw them out of their seats. That could be the bumper sticker slogan for the decennial redistricting process to redraw legislative boundaries.

After the U.S. Supreme Court struck down two North Carolina congressional districts for unconstitutional reliance on race — African Americans were heavily “packed” into the districts — the court is now set to dive into political gerrymandering cases. Having served on Colorado’s 2011 Reapportionment Commission (the state version of federal redistricting), I think the justices may find themselves quickly caught up in the political bramble.

In the most anticipated case, Gill vs. Whitford, Wisconsin Democrats challenged the map drawn by the state legislature after the 2010 census. Because the map favored Republican candidates, the plaintiffs claimed it discriminated against them based on their political beliefs, and, consequently, violated the Equal Protection Clause. The Court of Appeals agreed. In so doing, the court applied a new statistical measure called the “efficiency gap.”

Developed by the University of Chicago Law School and the Public Policy Institute of California, the efficiency gap theory is effectively porn for the hardcore political junkie. It measures the number of wasted votes — either a vote cast for a losing candidate or vote cast for a winning candidate in excess of what was necessary. The plaintiffs explained it through a cavalcade of charts, S-curves and graphs meant to simplify the dense mathematical underpinning. The outcome measures a party’s vote share against the number of expected wins in the legislature. For example, the plaintiffs argued that Wisconsin Republicans held only 48.2 percent of the vote share, but were favored in 59 out of 100 districts.

At first blush, it sounds like a perfect solution. The efficiency gap is fair, based in rigorous mathematical principles, and avoids the guesswork so common with these maps.

But it comes at a cost. To employ the analysis, it requires a priority above other important factors. In Colorado, those factors include city and county lines, the compactness of a district, and communities of interest. In search of a fair map, districts may cut across those lines and dissect neighborhoods. Common interests would be sacrificed to cold mathematical outcomes.

All of that, and I am not even sure the outcome really produces a fair result. Or at least a desirable one. First, it relies on a party’s vote share from prior elections to project into the future. That is a dubious proposition on several fronts. In a state where the largest voter registration is unaffiliated, the vote share of any party can swing wildly from cycle to cycle. Population booms, economic drivers, and the quality of candidates are among the myriad of factors that can effect vote share.

Second, what is fair and what is best for the state isn’t necessarily the same. Many editorial boards — including The Denver Post’s — have called for more competitive districts and, more importantly, competitive legislative chambers. For example, while the state House is not competitive and will almost certainly stay in Democratic hands for a full decade, control of the state Senate has flipped multiple times in the past five years and likely will again. That helps make legislators more responsive to constituents. But the efficiency gap is indifferent to this outcome. It pins itself to vote share, regardless of whether that outcome is competitive.

Unfortunately, like tangled fishing line, pulling on one side only tightens another. And the knot gets bigger. Even the brilliant minds on the Supreme Court bench may find it difficult to straighten. Of course, that is precisely why past courts have generally found similar cases to be non-judiciable political questions; questions only the crucible of legislative debate can answer. I would not be surprised if a similar outcome awaits the current set of cases.

While our redistricting system isn’t perfect, I don’t believe any ever can be. Even the best formulas will always come up wanting.

Mario Nicolais of Lakewood is a constitutional scholar and managing partner of KBN Law firm. Follow him on Twitter: @MarioNicolaiEsq

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