Law scholar Stephen Gottlieb tackles gerrymandering at Eric Carle Museum

  • Law Professor Stephen Gottlieb explains gerrymandering, using his representation of a hypothetical state that has been gerrymandered. David McLellan

For the Gazette
Wednesday, November 08, 2017

AMHERST — Imagine this situation: All across the state, elections for state legislature are taking place, and one party wins nearly two thirds of the lower house seats, yet only won half of the actual vote.

This is exactly what happened in Wisconsin during the 2012 elections. Wisconsin Republicans managed to gain 60 of the 99 seats in the Wisconsin Assembly by winning less than half of the popular vote. Similar situations have happened in other state legislatures like New York’s, due to the controversial practice of mapping electoral districts for partisan advantages. The constitutionality of this practice, known as gerrymandering, was brought before the Supreme Court on Oct. 3. The court is expected to reveal its ruling in June of 2018.

On Sunday, Professor Emeritus Stephen Gottlieb of Albany Law School, the author of “Unfit for Democracy: The Roberts Court and the Breakdown of American Politics,” addressed a crowd of more than 60 retirees, explaining the complicated issue of gerrymandering and its constitutionality — or unconstitutionality, Gottlieb might argue.

At the talk, “Gerrymandering in the Supreme Court,” at the Eric Carle Museum of Picture Book Art, Gottlieb explained what gerrymandering is, why it may be unconstitutional, a proposed solution to the problem and his prediction of how the Supreme Court will rule.

To define gerrymandering, Gottlieb brought up a photo of a large, blank circle — this was representative of a U.S. state. This hypothetical state, Gottlieb explained, had a population that was 60 percent “D,” concentrated on the left side of the circle, and 40 percent “R,” concentrated on the right side of the circle, or state. The law dictates that the state should have five equally populated districts, each 20 percent of the total state population, Gottlieb explained.

The problem — and where gerrymandering comes in — arises in how the hypothetical state decides to draw its five districts. The state could separate itself into five homogenous districts, three “D” and two “R.”

This scheme, Gottlieb said, fulfills those requirements set by law, but ensures that the “D” designation almost always wins three of the five districts; there are no battleground districts, in other words, and “D” always wins.

“In this, you have now a legislature that’s three ‘D’ and two ‘R,’” Gottlieb said. “But if you actually drew the district in this way, there’d be no competition, or the only competition would be in the primary.”

While this method of cartography is “safe and predictable,” Gottlieb said, it is fair, because the state is 60 percent “D” and 40 percent “R,” and has three “D” districts and two “R” districts. It’s proportional.

To combat this, a minority party, “R” in Gottlieb’s example, will try and practice a technique known as “stacking” when drawing the districts. This party, to gain an advantage, will bunch some of the “D” population into primarily “R” areas where it can, to make sure that some of the “D” population waste their votes.

This, Gottlieb said, is gerrymandering, and it’s what happened in Wisconsin that brought the issue to the Supreme Court. The unconstitutionality of “stacking,” Gottlieb said, is made obvious by the First Amendment.

“It’s a violation of many things, including equal protection, and it’s a violation of the First Amendment, because you are deciding something about people based on their political views,” Gottlieb said.

Gottlieb said there are equations that may be employed to figure out if a district has been unfairly gerrymandered, most notably that equation that finds the efficiency gap. To calculate the efficiency gap, one must find how many votes of a political party are “wasted” in the districts that are allegedly gerrymandered. The difference between the two parties’ number of “wasted” votes due to gerrymandering is the efficiency gap, and it indicates the extent to which a state has been gerrymandered.

The efficiency gap is one of the main proposals for identifying districts that have been unfairly drawn, and indicating that those districts need a redraw that will produce a lower efficiency gap.

Gottlieb believes that Justice Anthony Kennedy will be the deciding voice in this ruling, as he has been in many other rulings. Kennedy is known as a swing-vote within the Supreme Court, and is widely considered to have a libertarian approach to Constitutional law. Gottlieb predicts that Kennedy does not have an issue with the equations proposed — like the efficiency gap — to identify gerrymandering, and will rule against the practice of gerrymandering.

“When they were giving the case, and commenting on the different formulas and how they were going to work, and Kennedy’s contribution in that part of the argument: zero. He had not one question,” Gottlieb said. “We often say, ‘you can’t tell a great deal from the silence of a justice,’ but, somehow, I can’t imagine if Kennedy was upset by those formulas he would’ve stayed silent.”

This was the first talk held by the Five Colleges Learning-in-Retirement group, a group of retirees that organizes and participates in educational seminars, and has recently raised money to invite speakers, like Gottlieb, to give educational presentations to members.