“If you think the US House of Representatives is gerrymandered, you ain’t seen nothing yet until you look at Wisconsin State Assembly districts.”
That’s the assessment of political journalist and analyst Harry Enten of FiveThirtyEight, the news site owned by ESPN that focuses on using data to cover elections and politics as well as other topics.
Enten was speaking on “The Gerrymandering Project,” FiveThirtyEight’s new special six-part podcast on the issue of gerrymandering — the drawing of election district maps to favor one party or the other. Wisconsin Democrats have brought a case all the way to the Supreme Court over the districts Republicans drew in a deeply secretive process in 2011, which led to the GOP winning a majority of Assembly seats with a minority of the popular vote in 2012, and a significant gap between popular vote and Assembly representation in 2014 and 2016.
The Wisconsin case is the focus of the podcast’s second episode, which dropped on Thursday. The podcast is hosted and produced by Galen Druke, who was a producer at Wisconsin Public Radio during those 2014 elections.
“I was working on my show (at WPR) and covering Wisconsin politics, and eventually everyone kept saying there’s no way that the Democrats will control the Assembly within this decade,” Druke tells Madison365 in a phone interview from FiveThirtyEight’s New York office. “And I thought, hm, interesting. But I didn’t really know the specifics of how the state was redistricted in 2011 until I started reporting it out. I knew from having lived in Wisconsin that gerrymandering was a hot political topic there and sort of that in combination with the fact that it was headed to the Supreme Court made it obvious that that was probably the first story that we should cover.”
The Wisconsin story is the focus of last week’s episode of the 538 gerrymandering podcast. It tells the story of the almost-cloak-and-dagger means by which Wisconsin’s legislative districts were drawn — only Republican lawmakers were allowed to see the maps, which were kept in a law office conference room in downtown Madison; they were only allowed to see their own districts; they had to sign non-disclosure agreements. Documents were destroyed, hard drives wiped.
Druke says he can understand the desire to do the redistricting quietly.
“Whether or not it’s legal, it’s probably not great PR if the public were to see that happening in real time,” he says.
All the secrets came out in a lawsuit claiming the redistricting disadvantaged Latino voters in and around Milwaukee. That lawsuit ultimately failed, but led to the current case being considered by the United States Supreme Court. Oral arguments took place in September, and Druke says Wisconsin Democrats might have some reason for optimism.
All eyes are on Anthony Kennedy, widely seen as the swing vote on this topic. The other eight justices are likely to split four to four.
“FiveThirtyEight did an analysis of how frequently (Kennedy) stays silent during a party’s arguments and when he does stay silent, how likely he is to side with them,” Druke says. “And we saw that if Kennedy sits in silence he is more likely to side with your party.”
Kennedy sat completely silent during the Wisconsin Democrats’ argument, but had plenty of questions for the state’s Republican government.
“That’s a potential hint,” Druke says. “Also there is speculation that this will be Kennedy’s last year on the court. We know that he is very skeptical of partisan gerrymandering. So if he wants to do something about partisan gerrymandering before he leaves the court, this may be his last opportunity.”
The Wisconsin case is, of course, representative of a larger nationwide issue — a complex one that’s not easy to understand or solve.
“Because (gerrymandering) has become this buzz word for everything that’s wrong with the American political system, I think it’s important that people understand the complexity behind it. It’s easy to get really angry about something but you don’t understand all that much,” Druke says. “Obviously people feel like the system is not working. And obviously the system has been warped. Whether legally or not legally, politicians have used the system that we have today to benefit themselves. That frustrates people. If people want to do something about it they should. That’s obviously how American democracy works. But in the process of trying to make the system better, understand how it works.”
Which is the point of the podcast — to help people understand the issue more deeply. But the more you understand the process and the issues involved, the more clear it becomes that there’s no simple solution.
“Even if you take (redistricting) away from lawmakers and give it to a commission, those commissioners are going to have to make difficult choices,” Druke says. “Do we want to focus on keeping communities together respecting existing geography, do we want to focus on enhancing competitiveness in elections, do we want to focus on eliminating partisan bias? There’s no way to perfectly answer those questions.”
Druke also says it’s important to understand what will and won’t happen if Wisconsin Democrats win in the Supreme Court.
“If the Supreme Court rules in Wisconsin Democrats’ favor, there are going to be newspaper articles that are written that say. ‘Supreme Court ends partisan gerrymandering.’ That is not true,” Druke says. “If the Supreme Court rules in favor of Wisconsin’s Democrats, the court will be taking a first step in what will be a very long process in determining a legal standard for how districts should be drawn with regard to partisanship. For people who are upset with partisan gerrymandering, this Supreme Court case is not a silver bullet for their worries. We can expect the conversation to continue long into the future even if Wisconsin Democrats win.”
Upcoming episodes will look at North Carolina, Arizona and California and the different ways redistricting is playing out across the country.
“In the next episode we go to North Carolina and look at racial gerrymandering,” Druke says. “If you’re curious about the complexities of determining what is fair in drawing a district that is an episode you want to listen to. Racial gerrymandering is illegal but the courts have spent decades trying to figure out what exactly constitutes racial gerrymandering. A lot of people will tell you today that it’s still not clear. And then after that we go to Arizona look at competitive elections, competitive districts. Arizona set out to try to foster competitive elections in their redistricting process. That turned into an all-out brawl. And then lastly in California they are arguably the state that went further than any other state in creating a commission to try to remove politics from the process and we’ll try to determine whether or not they succeeded.”
Whatever the outcome of the Supreme Court case, expected to be announced in the summer, one thing is certain — nothing will be made simpler.
“I’ve heard people say that if the Wisconsin Democrats win, it’s a full employment decision for attorneys,” Druke says. “There are going to be so many cases brought on this trying to lay down markers of what is actually fair.”
New episodes of The Gerrymandering Project podcast are available every Thursday until January 11 to subscribers of FiveThirtyEight’s Politics Podcast. The subscription is free and available through iTunes, Stitcher, or any podcast app.
This piece has been corrected to clarify the relationship between the popular vote and Assembly representation in the last three elections.