Quantifying Partisan Gerrymandering: An Evaluation of the Efficiency Gap Proposal

94 Pages Posted: 17 Aug 2017 Last revised: 24 Dec 2017

Benjamin Cover

University of Idaho - College of Law

Date Written: December 22, 2017


Electoral districting presents a risk of partisan gerrymandering, the manipulation of electoral boundaries to favor one party over another. For three decades, the Court has failed to settle on a legal test for partisan gerrymandering, and such claims have uniformly failed. Until now. Plaintiffs have prevailed before a three-judge federal panel, leveraging a new measure called the “efficiency gap” that quantifies partisan gerrymandering in terms of two parties’ relative efficiency at translating votes for their party into seats in government. The case is now before the Supreme Court, which may embrace the efficiency gap approach and thereby remake the law of electoral districting. Through a synthesis of mathematical and legal analysis, this Article examines the efficiency gap measure, focusing particularly on its underlying methodological choices and electoral assumptions, and its relationship to competitiveness, seats-votes proportionality, and voter turnout.

The efficiency gap is a useful indicative measure of partisan gerrymandering under the circumstances of the instant case, where each party earns about half the votes and a large efficiency gap persists under plausible variations in voter behavior. Relying in part on the efficiency gap measure, the Supreme Court should rule in favor of the plaintiffs. However, a mapmaker can achieve a below-threshold efficiency gap with a skewed bipartisan gerrymander that carves a state up into uncompetitive districts that deny minority parties sufficient representation. For example, a party that earns only 59% of the vote can secure a filibuster- and veto-proof 75% supermajority of the legislature with a below-threshold efficiency gap. For this and other reasons, the Court should not adopt the efficiency gap as the exclusive definitional measure of partisan gerrymandering under all circumstances, such that a plan is invalid if and only if it exhibits a large, durable, intended, and unjustified efficiency gap. Instead, the Court should permit some flexibility for scholars, litigants, and courts to refine measurement approaches over time and for varying circumstances. One approach worth future exploration is a variation on the efficiency gap that defines a surplus vote in terms of the full margin of victory and compares wasted vote shares instead of totals. Finally, the Court should be aware that any measure, like the efficiency gap, that compares votes to seats entails the perverse risk that partisan voter suppression may operate to reduce the apparent severity of partisan gerrymanders.

Keywords: election law, redistricting, efficiency gap, partisan gerrymandering, constitutional law

Suggested Citation

Cover, Benjamin, Quantifying Partisan Gerrymandering: An Evaluation of the Efficiency Gap Proposal (December 22, 2017). 70 Stanford Law Review, 2018, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3019540

Benjamin Cover (Contact Author)

University of Idaho - College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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