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States must redraw their election districts every 10 years, based on the U.S. census, in order to account for changes in population.¹ In most states, legislatures are responsible for redrawing the maps.² State legislators can manipulate district boundaries to benefit their political party, either by cramming the other party’s voters into as few districts as possible or by thinly spreading the other party’s voters among districts where they are outnumbered.³ This manipulation, called gerrymandering, weakens voters’ ability to affect election outcomes. Technological advances have meant that states with gerrymandered districts have maps that are even more skewed than ever before.⁴ Recent polling shows that the vast majority of Americans—of both political parties—oppose partisan gerrymandering.⁵

The manipulation of districts means that politicians are picking their voters instead of the other way around.⁶ Distorted election districts lead to skewed representation and legislators who are less responsive to the will of the voters. An upcoming paper by three political scientists examines the impact of gerrymandering on policy outcomes, and it notes that if district maps favor one party, “then some citizens will enjoy more influence—more ‘voice’—over government policies than others.”⁷ The authors note that large “efficiency gaps can deny the majority of voters the opportunity to reverse past policies that they dislike or to enact large policy changes themselves.”⁸

This brief discusses state legislatures in which gerrymandering has led to the greatest disparities between the votes cast for each political party and the number of seats won by the parties. Polls show that those gerrymandered state legislatures are enacting policies that voters do not support and refusing to pass laws that voters do support. Of course, other factors can contribute to legislators ignoring the public policy preferences of their constituents, including the influence of wealthy campaign donors and special interests.⁹

The results of gerrymandering are well known at the federal level. In 2012, Democratic candidates for the U.S. House of Representatives received 1.17 million more votes than Republicans, but the GOP ended up with a solid 57 percent majority in the House.¹⁰ The GOP managed this feat thanks, in part, to gerrymandering of Congressional districts by state legislatures.¹¹ In November 2016, Republicans again received fewer votes than Democrats but maintained a clear majority in Congress.¹² Democrats benefit from gerrymandering in a few states where they controlled the process of drawing maps, and Congressional districts in Maryland are facing legal challenges for favoring Democrats.¹³ However, a recent analysis from the Brennan Center for Justice estimates that the net benefit of partisan gerrymandering accounts for at least 16 or 17 Republican seats in Congress.¹⁴ A recent forecast of the 2018 Congressional elections estimates that Democratic candidates will receive 54 percent of the votes, but Republicans will maintain their majority in the House.¹⁵

Many of these GOP candidates for Congress campaigned on a platform to repeal the Affordable Care Act (ACA). Earlier this year, the House passed a bill to fulfill that promise,¹⁶ though only 16 percent of Americans supported the House bill according to a NBC/Wall Street Journal poll.¹⁷ The bill included large tax cuts for the wealthy¹⁸—something the vast majority of citizens oppose.¹⁹ Meanwhile, the House voted down popular measures, such as a minimum wage increase and nondiscrimination protections for LGBT people.²⁰

State legislatures are even more gerrymandered than Congress.²¹ This has led to legislative agendas that do not reflect the values of the majority of voters. The expansion of Medicaid under the ACA is something that the vast majority of voters support, but 19 states have refused the federal funding that covers almost all of the cost.²² As a result, 2.6 million low-income people cannot obtain the health care insurance that they could receive if they lived in states that expanded Medicaid.²³ Many state legislatures are also passing laws that pre-empt local laws that are broadly popular, such as expanded civil rights protections and minimum wage increases.²⁴ In recent years, the Wisconsin Legislature, for example, passed more than 100 laws blocking local government action.²⁵

This brief discusses the fate of public policies in six state legislatures in which distorted districts recently resulted in a mismatch between the votes cast for each party and the seats gained by each party. It outlines policies that were not enacted by those state legislatures, even though they enjoyed popular support in public opinion polls, as well as some that were enacted despite being unpopular. The states profiled are Wisconsin, Virginia, Rhode Island, Ohio, Michigan, and North Carolina.

On October 3, the U.S. Supreme Court hears oral arguments in Gill v. Whitford, a case challenging extreme partisan gerrymandering in Wisconsin.²⁶ The court could soon restrain politicians’ ability to manipulate election districts to gain an unfair partisan advantage. The plaintiffs in the case, represented by the nonpartisan Campaign Legal Center, argue that Wisconsin’s distorted maps violate the rights of Democratic voters under the Equal Protection Clause and the First Amendment.²⁷

The lawsuit analyzes Wisconsin’s districts using a new measure of partisan gerrymandering called the “efficiency gap.”²⁸ The efficiency gap begins by tallying what are referred to as “wasted” votes, which are those cast for a losing candidate and votes for the winning candidate in excess of what the candidate needed to win.²⁹ The scholars who created the efficiency gap—Nicholas Stephanopoulos and Eric McGhee—argue that, in a competitive state, the two parties should have a roughly equal amount of wasted votes if districts are drawn fairly.³⁰ To obtain the efficiency gap, the difference between the two parties’ wasted votes is divided by the total number of votes cast.³¹

The lower court’s 2016 ruling in Gill—which relied on the efficiency gap—is the first time in decades that a court invalidated a redistricting map because it gave an unfair benefit to one political party.³² In a divided 2006 opinion, five justices of the Supreme Court agreed that partisan gerrymandering can violate the Constitution by unfairly targeting perceived supporters of the other party, but they did not agree on how to decide when a state has gone too far.³³ This new measure of partisan gerrymandering is intended to satisfy the Supreme Court’s search for a workable standard for deciding how much partisanship is too much.³⁴ Mark Joseph Stern of Slate noted that, if the justices approve of the new measure, courts could “fundamentally alter representation in the United States.”³⁵

Stephanopoulos and McGhee argue that a map should be presumed unconstitutional if the efficiency gap is greater than 7 percent and if “the gap is unlikely to hit zero over the plan’s lifetime” given electoral trends.³⁶ourts would need to choose an efficiency gap threshold above which district plans would be presumptively unlawful and below which they would be presumptively valid. Our suggestion is that the bar be set at two seats for congressional plans and 8 percent for state house plans—with the additional caveat that the plans not be expected, based on sensitivity testing, ever to have an efficiency gap of zero over their lifetimes … States whose plans have efficiency gaps above these thresholds would have the chance to show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ underlying political geography.” Ibid., p. 884.] In circumstances such as this, it is unlikely that “plausible changes in voters’ preferences” would lead to a new majority in the state legislature.³⁷ Four states had Congressional maps in place in 2012 that would be presumed unconstitutional under this proposed threshold: Pennsylvania, Ohio, Florida, and Virginia.³⁸ (The map in Florida has since been redrawn, after state courts ruled it unconstitutional.³⁹) Thirteen states had presumptively unconstitutional districts for 2012 state house elections: Wyoming, Wisconsin, Rhode Island, Oklahoma, Virginia, Michigan, Ohio, North Carolina, Kansas, Idaho, Missouri, Indiana, and Massachusetts.⁴⁰ The authors suggest that “a state whose plan’s efficiency gap exceeds the relevant threshold should have the chance to argue that the gap either was the necessary result of a legitimate and consistently applied state policy, or was inevitable given the state’s underlying political geography.”⁴¹

Stephanopoulos and McGhee found that the efficiency gap suggests that Democrats had a “modest” advantage through redistricting in the 1970s and 1980s.⁴² Republican candidates had a larger advantage in the 1990s and early 2000s, only to see their advantage skyrocket in 2012.⁴³

The efficiency gap for the Wisconsin Legislature was calculated at more than 13.3 percent in 2012 and around 10 percent for 2014 and 2016.⁴⁴ The plaintiffs noted that GOP candidates would have won more than 60 percent of the seats, even if the “elections had been perfectly tied.”⁴⁵ Just weeks after the November 2016 election, a three-judge panel, which included two judges appointed by Republican presidents, ruled the map unconstitutional.⁴⁶ The court said the map was intended to “secure Republican control … under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power.”⁴⁷ The judges noted that “even when Republicans are an electoral minority, their legislative power remains secure.”⁴⁸

In 2012, Republican legislators in Wisconsin gained a supermajority—60 out of 90 seats—despite losing the statewide popular vote.⁴⁹ The Campaign Legal Center noted, “In 2014 and 2016, Republicans extended their advantage to 63 and 64 seats, respectively, even though the statewide vote remained nearly tied.”⁵⁰ The leaders of the Wisconsin Legislature hurriedly drafted its 2011 redistricting maps while the Republican party was in danger of losing its majority during six recall elections.⁵¹ The maps were revealed only a week-and-a-half before they were put up for a vote, and Gov. Scott Walker (R) signed the bill on the day of the recall election.⁵²

Distorted districts in Wisconsin have produced GOP supermajorities. Emily Bazelon of The New York Times Magazine wrote, “Wisconsin is a purple state … But one-party control continues to produce policies—more union busting, abortion restrictions and lately $3 billion in proposed tax credits for the electronics giant Foxconn—associated with a deep-red electorate.”⁵³ When the federal court struck down the maps, it pointed out that “in any likely electoral scenario, the number of Republican seats would not drop below 50%.”⁵⁴ An expert testified at the trial and estimated that the large efficiency gap would persist as long as the maps were in place.⁵⁵
Shielded from accountability to their voters, Wisconsin’s Legislature enacted an agenda that defied the preferences of most of their constituents. To stop frustrated citizens from turning to their local governments, the Legislature passed unpopular laws preventing local governments from setting their own rules in a variety of areas, such as the protection of sensitive environments and gun violence prevention laws.⁵⁶

The unpopular actions of the Republican Legislature have harmed the state’s residents in several ways:

• In 2014, when a University of Wisconsin–Milwaukee poll showed that more than three-quarters of state residents supported a minimum wage increase, cities and counties across the state put minimum wage referenda on their own ballots.⁵⁷ The referendum won a clear majority in all 13 jurisdictions that voted on it—with two-third of all voters in favor—but could not go into effect because of a new state law preventing local increases.⁵⁸ The state Legislature also blocked efforts to raise the statewide minimum wage, despite clear support for a higher wage among Wisconsin residents.⁵⁹
• The Legislature’s refusal to expand Medicaid under the ACA—a decision opposed by 56 percent of voters from both parties—caused 85,000 Wisconsinites to lose out on access to affordable and quality health care.⁶⁰
• Two-thirds of Wisconsinites think the rich should pay higher taxes, yet the Legislature has passed a series of tax cuts overwhelmingly favoring the state’s wealthiest residents.⁶¹
• As 72 percent of Wisconsinites voiced support for increased funding for public schools, the Legislature enacted “the biggest cut to education in Wisconsin’s history” in 2011, according to the Center for Media and Democracy.⁶²
• The legislature has repeatedly blocked bills to help student loan borrowers refinance their loans—a move supported by over two-thirds of Wisconsinites in a recent poll.⁶³ More than 750,000 people in the state have federal student loan debt.⁶⁴

Virginia has voted for Democratic candidates in recent statewide elections, but gerrymandering has helped Republicans stay in power. Democrats won all statewide offices in 2013, but Republicans won a supermajority in the House of Delegates.⁶⁵ Stephanopoulos and McGhee said the Republican advantage in Virginia was “unlikely to fade away in future elections.”⁶⁶

The previous governor, Bob McDonnell (R), campaigned on a promise to reform redistricting and created an independent advisory commission in 2011.⁶⁷ The legislature, however, ignored the commission’s recommendations.⁶⁸ Nearly three-quarters of Virginians want an independent commission to draw district lines, according to a 2013 poll.⁶⁹

In March, the Supreme Court overturned a lower court’s ruling that Virginia’s district maps did not discriminate against black voters.⁷⁰ The justices voted 8-1, with only Justice Clarence Thomas issuing a partial dissent.⁷¹ Like other Southern state legislatures, Virginia was charged with “packing” African American voters into a few districts, minimizing their influence in other districts as well as their overall political power.⁷²

As in Wisconsin, gerrymandering by Virginia legislators who are not responsive to their constituents’ preferences has harmed voters:

• The Republican-controlled Virginia legislature passed a law in 2016 barring local governments from increasing the minimum wage, though this was vetoed by Gov. Terry McAuliffe (D).⁷³ A 2014 poll found that two-thirds of Virginians support a higher minimum wage.⁷⁴
• A recent poll found that 69 percent of voters support the expansion of Medicaid under the ACA,⁷⁵ but the Virginia legislature rejected the expansion, even though the federal government would initially cover almost all of the cost.⁷⁶
• A similar percentage of voters polled supported a law preventing discrimination against LGBT people,⁷⁷ but LGBT nondiscrimination bills have failed in the last three sessions.⁷⁸ Wide majorities of Virginians also support same-sex adoption and oppose businesses discriminating against LGBT people,⁷⁹ yet the legislature has passed laws allowing discrimination against same-sex couples in the name of religious freedom.⁸⁰
• The legislature has slashed education funding, despite 72 percent of Virginia voters opposing cuts to K-12 education.⁸¹

In Rhode Island, the legislature draws districts with recommendations from an 18-member commission with a vast majority of members appointed by the majority leaders in both houses of the state legislature.⁸² Though the governor was an independent, Democrats controlled both houses during the 2010 redistricting cycle.⁸³

Rhode Island and Massachusetts were the only state legislature districts drawn by Democratic officials that crossed the threshold suggested by Stephanopoulos and McGhee, and Rhode Island’s efficiency gap for 2012 was around 11 percent, the fourth-highest in their study.⁸⁴ Republicans won 35 percent of the aggregate General Assembly vote in that election but came away with only 13 percent of seats.⁸⁵ The 2016 election, however, resulted in a lower gap of 2.25 percent, according to the Associated Press.⁸⁶

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