+(,121/,1( Citation: 82 U. Chi. L. Rev. 831 2015 Provided by: The University of Chicago D'Angelo Law Library Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Feb 2 13:11:38 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9494 Partisan Gerrymandering and the Efficiency Gap Nicholas 0. Stephanopoulost& Eric M McGheeft The usual legal story about partisangerrymandering is relentlesslypessimis- tic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting justices want to vacate the field altogether. The Supreme Court's most recent gerrymanderingdeci- sion, however, is the most encouraging development in this area in a generation. Several justices expressed interest in the concept of partisan symmetry-the idea that a plan should treat the majorparties symmetrically in terms of the conversion of votes to seats--and suggested that it could be shaped into a legal test. In this Article, we take the justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference be- tween the parties' respective wasted votes in an election, divided by the total num- ber of votes cast. It captures, in a single tidy number, all of the packing and crack- ing decisions that go into a district plan. It also is superior to the metric of gerrymandering,partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactualanalysis. Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years--andpeaking in the 2012 election-plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several are likely to remain extreme for the remainderof the decade, as indicated by our sensitivity testing. Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconsti- tutional: two seats for congressionalplans and 8 percent for state house plans, but only if the plans probably will stay unbalanced for the remainder of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent applicationof legitimate pol- icies or were inevitable due to the states'politicalgeography. This approach would t Assistant Professor of Law, The University of Chicago Law School. tt Research Fellow, Public Policy Institute of California. This Article builds on our earlier legal and political science work on redistricting. It is part of a larger project aimed at grasping the consequences-and improving the law- of this important and intricate activity. For helpful comments, we are grateful to Bruce Cain, Jowei Chen, Chris Elmendorf, Andrew Gelman, Michael Gilbert, Ruth Greenwood, Bernie Grofman, Rick Hasen, Benjamin Highton, Simon Jackman, Vlad Kogan, Justin Levitt, and Rick Pildes. We are pleased as well to acknowledge the support of the Robert Helman Law and Public Policy Fund at The University of Chicago Law School. 832 The University of Chicago Law Review [82:831 neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court's "unanswerablequestion" of "[h]ow much political ...effect is too much." INTRODU CTION ....................................................................................................832 I. THE DOCTRINAL OPPORTUNITY ....................................................................839 A . P re-L ULA C ..........................................................................................839 B . L UL A C .................................................................................................842 C. Post-L ULA C ........................................................................................846 II. THE EFFICIENCY G AP ...................................................................................849 A. Definition and Com putation ...............................................................850 B . K ey P roperties .....................................................................................853 C. Com parison to Partisan Bias ..............................................................855 D . L im itation s ..........................................................................................863 III. GERRYMANDERING OVER TIME AND SPACE ...................................................867 A . Sum m ary Statistics ............................................................................868 B . Individual Plans ..................................................................................874 C. Gerrym andering Litigation ................................................................876 IV . A POTENTIAL TEST .......................................................................................884 A . Setting the Threshold .........................................................................885 B. Presumptive Validity and Invalidity .................................................891 C. Concerns and Responses .....................................................................895 C ON CLU SIO N....................................................................................................... 899 INTRODUCTION Professor Cass Sunstein once quipped that the nondelega- tion doctrine (which purports to limit congressional delegations of legislative authority to agencies) "has had one good year, and 211 bad ones."' According to the conventional wisdom, the cause of action for partisan gerrymandering 2 has not had even this one good year. The claim was not recognized until 1986, when the Supreme Court ruled that gerrymandering is justiciable but still upheld a pair of Indiana district plans that used every trick in the book to disadvantage the state's Democrats. 3 Since 1986, not I Cass R. Sunstein, Nondelegation Canons, 67 U Chi L Rev 315, 322 (2000). 2 We note at the outset that, consistent with the metric we introduce in this Arti- cle, whenever we refer to "gerrymandering," we mean district plans whose electoral con- sequences are sufficiently asymmetric. We do not mean plans that were devised with partisan intent. Our conception of gerrymandering is strictly effects-based and (unlike other common conceptions) does not relate to plans' motivations or objectives. As we ex- plain in Part I.B, the Court recently has created an opening for this sort of effects-based theory, while explicitly rejecting intent-based claims. 3 See Davis v Bandemer, 478 US 109, 115, 118-43 (1986) (upholding legislative plans that created single-, double-, and triple-member districts resulting in, for example, 20151 PartisanGerrymandering and the Efficiency Gap a single plaintiff has managed to persuade a court to strike down a plan on this basis. 4 By our count, claimants' record over this generation-long period is roughly zero wins and fifty losses.5 And adding insult to injury, a majority of the Court rejected al- most every conceivable test for gerrymandering in 2004, and a plurality would have extricated the judiciary from this domain altogether.6 But the gloomy conventional wisdom is not quite right. In the Court's most recent gerrymandering case, League of United Latin American Citizens v Perry7 ("LULAC"), several justices ex- pressed surprising enthusiasm for the concept of "partisan symmetry"-the idea, that is, that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats. Justice John Paul Stevens raved that sym- metry is "widely accepted by scholars as providing a measure of partisan fairness in electoral systems."s Justice David Souter noted that "[i]nterest in exploring this notion is evident."9 And, most remarkably of all, Justice Anthony Kennedy declared that he did not "discount[ I] [symmetry's] utility in redistricting plan- ning and litigation. 1° These comments, overlooked by almost all scholars and litigants in the aftermath of LULAC,1i are the most Democrats receiving 51.9 percent of the vote but only 43 percent of the seats in Indiana's House of Representatives). 4 See Vieth v Jubelirer, 541 US 267, 279-80 (2004) (Scalia) (plurality) ("[I]n all of the cases we are aware of involving [redistricting], relief was denied."). See also Part 1. C. 5 This count is different from the one we mention in Part III.C, because there we consider only challenges to the congressional and state house plans in our study. 6 See Vieth, 541 US at 277-306 (Scalia) (plurality). 7 548 US 399 (2006). 8 Id at 466 (Stevens concurring in part and dissenting in part). 9 Id at 483 (Souter concurring in part and dissenting in part). 10 Id at 420 (Kennedy) (plurality). 11 To our knowledge,