There are many People who Live and Breathe Spreadsheets in New York City. But Todd Breitbart’s Columns and Rows connect him not to dollars and cents but to Neighborhoods, Ethnic Groups, and Democracy. Breitbart is obsessed with the once-a-decade Process of Redistricting and its Long-Term Impact on Voting and Representation. It’s often said that Political Mapmakers draw Districts so Legislators can choose their Voters, rather than the other way around. Breitbart observed that Axiom in action, working for the New York State Senate from 1980 to 2005.
Breitbart was the Senate Democrats’ Point Man for Redistricting. But though he grew up in a Democratic household and still identifies with its values, he’s not exactly fond of his Native Political Party. “Legislative redistricting in New York isn’t a question of Democrats versus Republicans — it's more like Bolsheviks versus Mensheviks,” he said. “The two majority parties combine to preserve their interests as majorities against the minorities in their respective houses.”
In evoking the Factional Split in the early Soviet Union, Breitbart isn’t suggesting Democrats and Republicans are like two different types of Communists. He’s saying that both Parties are like Bolsheviks in that they’re so dedicated to Majority Rule in One House, the Democrats in the Assembly and the Republicans in the Senate, that they’ll sacrifice many Members to Permanent Minority, or Menshevik, Status in the other House. Although that beats imprisonment, exile and execution, which the Bolsheviks wreaked upon the Mensheviks.
To some, the Split between the Parties suggests Political Parity and Fairness, with neither Side able to Form a Monopoly. To People like Breitbart, it Represents a Corrupt Bargain Built on and Maintained by Partisan Gerrymandering. An Analysis Commissioned by WNYC using a New Technique soon to be Evaluated by the U.S. Supreme Court shows that Fierce, and possibly Unconstitutional, Partisan Gerrymandering is afoot in Albany.
Since Retiring almost 15 years ago, Breitbart has Dedicated himself to Reforming the Legislative Redistricting Process in New York. He's Analyzed the Impact of Gerrymandering, testified at Hearings, and Joined a Legal Challenge to the State’s most Recent Redistricting, in 2012. He and Election Attorney Jeffrey Wice Co-Wrote a Chapter titled “These Seats May Not be Saved,” in the 2016 book “New York’s Broken Constitution.”
They Conclude that Quirks in the State Constitution have helped Produce a Unique Legal and Political Tradition basically Enshrining Gerrymandering as a Way of Life. They say it’s particularly Evident in the State Senate, where “the requirement that districts be compact is ignored. County boundaries are virtually erased as the basis for drawing districts,” and Politically Conservative Rural Areas are Milked for more Districts than Politically Liberal Metropolitan Districts.
Breitbart and Wice Highlight Two other GOP Gerrymandering Techniques in Common Usage in the New York City Region: the Splitting (or “Cracking”) of Minority Communities on Long Island, to Dilute their Vote; and the Clustering (or “Packing”) of Minority Communities in the Bronx and Southern Westchester, to Carve Out an Oddly Shaped District specifically for Largely White Communities. The upshot of all this is that Republicans have Clung to Power in the Senate, despite Shrinking Enrollment Statewide.
Technically, the State GOP holds a Minority in the Senate, with 32 out of 63 Seats, including one they Created in the 2012 Redistricting. But Republicans have forged a Coalition that Controls the Chamber, thanks to Nine nominal Democrats, Brooklyn’s Simcha Felder and the Eight Members of the Independent Democratic Conference, who have turned their Back on the other Members from their Party.
Republicans, for their Part, say Redistricting has always been Even-Handed, since each Party gets to Control one Legislative Chamber. They say no one’s in Power because of the way Lines were Drawn, and that funny-shaped Districts like the one in the Bronx are just Connecting “Communities of Interest”. “You cannot draw district lines to guarantee that either party will be successful,” said Anthony Casale, Senior Political Advisor to the State Republican Party and a former Assemblyman Upstate. “I can remember plenty of cases where they drew lines to protect political incumbents, and challengers won in districts they weren’t supposed to win.”
New York Republicans have consistently Defeated Partisan Gerrymandering Challenges in State and Federal Court. Breitbart and Wice largely Attribute these Victories to the State’s Constitution and a “Legal Culture” that defers to the Legislature, regardless of how Entrenched the Two Parties are.
Nationally, Drawing District Maps Based on Race has been Illegal since the 1960s. But Drawing them Based on Partisan Advantage is a different story. In Diverse States like New York, Racial Gerrymandering and Partisan Gerrymandering often go Hand-in-Hand. The U.S. Supreme Court has said that a Certain Amount of Partisan Gerrymandering is Inevitable; it's simply the Spoils of Winning a Majority. But the Court has also said Extreme Partisan Gerrymandering Violates Voters' Rights to Equal Protection.
But what Constitutes “Extreme” has been Elusive. A Gerrymandering Case in Pennsylvania in 2004, Antonin Scalia, writing for Four Justices, said it would be “Impossible” to Produce an Objective Standard "clear enough and enough rooted in constitutional imperatives." That Quartet was Prepared to Overturn Existing Law and Decree Partisan Gerrymandering Constitutional, since there's No Way to Police it. But Anthony Kennedy, the Perennial Swing Vote, said, "Not so Fast." While he Joined the Majority in Rejecting that Specific Gerrymandering Claim, in a Separate Opinion he left Open the Door to someday finding a "Suitable Standard" to Determine when Partisan Gerrymandering has gone too far.
Stanford University Professor Nathaniel Persily says that ever since, Scholars have been trying to Devise a Test that would Satisfy Kennedy, something more Air-Tight than "I know it when I see it," as Justice Potter Stewart famously wrote about Hard-Core Pornography during a First Amendment Case. “The argument in the gerrymandering cases is the same one, historically, made against pornography," he said. “And so the question is with this particular brand of political pornography: Do we have measures of partisan gerrymandering that say when partisan greed just goes too far?”
Several Measures have Emerged. This Spring, one of them helped persuade Federal Appeals Court Judges in Wisconsin that Republicans in Madison, by Turbocharging the Election Map to their long-term Advantage, deprived Voters of their Constitutional Protections. The Judges in the Case, Gill v. Whitford, told Wisconsin to Redraw District Lines. But before that could happen, the Case quickly moved to the U.S. Supreme Court, where Oral Arguments will be heard next Month.
The New Math: RadioLab's Robert Krulwich explains the Efficiency Gap, a way to Measure Partisan Gerrymandering that will come before the U.S. Supreme Court next Month. That Metric uses Basic Math to ask what’s really going when Mapmakers Manipulate District Lines. Contrary to popular belief, those in Control aren’t trying to Draw as many Seats as possible where their Side Wins by Wide Margins. Since you only need One more Vote than your Opponent to Prevail, it’s much more Effective to Win by a Modest-but-Comfortable Margin. That way you Spread out your Supporters across Adjacent Districts as Efficiently, and “Waste” as few Votes, as possible.
The Efficiency Gap is simply the Difference between the Parties’ respective Wasted Votes in an Election, Divided by the Total Number of Votes Cast. Wasted Votes are Ballots that don’t Contribute to Victory for Candidates, and they come in Two Forms: Lost Votes Cast for Candidates who are Defeated, and Surplus Votes Cast for Winning Candidates but in Excess of what they Needed to Prevail. When a Party Gerrymanders a State, it tries to Maximize the Wasted Votes for the Opposing Party while Minimizing its Own, thus Producing a Large Efficiency Gap. In a State with Perfect Partisan Symmetry, Both Parties would have the Same Number of Wasted Votes.
At the same time, you want to Waste as Many Votes of your Opponent as you can. This is where “Cracking and Packing” comes in. Either you Divide and Conquer your Opponents, so they can’t Sway Elections in Existing Districts and don’t get a District of their own; or, if Spreading out Opponents isn’t an Option, you Bunch them as Tightly Together as Possible. It’s all about Wasting Votes as Efficiently as Possible. So Political Scientist Eric McGhee, at the Public Policy Institute of California, Developed a Score he calls the Efficiency Gap. “It measures this packing and cracking process by tallying up the wasted votes and taking the difference between the two parties’ wasted votes,” he said. When District Maps are Drawn Fairly, the Two Sides Waste Similar Numbers of Votes across a State, and the Efficiency Gap is Narrow. When it’s Lopsided, the Gap Widens. Like Minded People decide to Live near each other, that’s not Gerrymandering. It’s just Self-Selection or Political Sorting. By Applying this Test to Various States and doing a Variety of Additional Calculations, McGhee and Nicholas Stephanopolous, a University of Chicago Law School Professor, determined that Partisan Gerrymandering is Present when the Efficiency Gap climbs above 8%.
In Wisconsin’s Assembly, the Gap was 13.3% in the 2012 Elections and 9.6% in 2014 Elections. The Brennan Center for Justice at NYU analyzed the New York Legislature for WNYC. While the Assembly was Relatively Balanced, the Gap in the Senate was 20.9% in 2012, 16.9% in 2014, and 17.9% in 2016. Senior Counsel Michael Li called the Results “Shocking.” “If you had fairer maps, the Democrats would likely have anywhere from eight to 10 additional seats,” Li said.
And that’s with Rounding Down. Over the last Three Elections following the 2012 Redistricting, the 18.5% Efficiency Gap Translates into an even bigger 13-Seat Surplus for New York Republicans. “Now some of that is due to political geography,” Li said, referring to the Big Wasted Vote Margins you get when like-minded People Cluster in Cities, Suburbs, and Small Towns. “But a lot of it is due to gerrymandering.”
Li’s Colleague, Laura Royden says New York’s Congressional Map, which was drawn Separately, by Prof. Persily, under a Court Order, has Produced more Competitive Election Contests around the State than the Legislative Map.
“That shows it’s possible to draw a more balanced map, if you take the politics out of it,” Royden said. Li, Royden, McGhee, and Stephanopoulos all emphasize that the Efficiency Gap is just a Starting Point for Evaluating Partisan Imbalance. Li Described it as One Tool in a Diagnostic Toolbox. “When you go to the doctor, and they’re trying to determine if you have a certain disease, they run certain tests,” Li said. “They’re also going to do a physical exam. They’re also going to ask about your lifestyle and family history. It’s not just one test.”
Li says Republicans have such a Large and Artificial Advantage due to Gerrymandering, that Fairer Lines would Flip the Balance of Power in Albany. Remove Gerrymandering and the GOP Ranks would Shrink so far that even the Eight Seats in the Independent Democratic Conference wouldn’t help. “If you had fairer maps, the IDC would be irrelevant,” he said. “And that really shows you just how extreme New York’s gerrymander was.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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