Hopefully the result of this past Tuesday's argument will be the Supreme Court ruling that Wisconsin's partisan gerrymandered legislative districts violate the Equal Protection Clause and First Amendment in the same way racial or ethnically drawn lines would be interpreted. After the 2010 census, the current boundaries were drawn by the Republican-controlled legislature. In the 2012 election, the GOP won 48 percent of the vote but garnered 60 of 99 legislative seats. The Democratic candidates won 51 percent of the vote but secured only 39 seats. Wisconsin is not alone in its unfair advantage.
According to an analysis by FiveThirtyEight, in 1992 roughly one-quarter of all 435 congressional districts were competitive, meaning the presidential election was decided within 5 percentage points. That number has been in steady decline; by 2016, only 37 seats were competitive. Here's another barometer: In the last election, 98 percent of congressional elections were won by incumbents and most were won by more than 10 percentage points.
Both parties have long engaged in gerrymandering, but now, in the age of big data, it's more sophisticated than ever. The Republican effectiveness with gerrymandering after the 2010 census is one reason why the Democratic Party is in its worst shape since Reconstruction. Still, the court would solve only part of our problems by siding with the plaintiffs in the case of Gill v. Whitford. Geography will still be an issue. That's because we are choosing to self-sort.
"The impact might not be as dramatic as supporters of the plaintiffs hope — because Americans have residentially gerrymandered themselves, and that's difficult to undo," said David Wasserman, the House editor of the Cook Political Report.
"In many parts of the country, it's become difficult to draw competitive districts because communities have become so lopsided," Wasserman said. "However, if the Supreme Court does rule partisan gerrymandering unconstitutional, the real question is, what standard do they set to identify it? How strict is it and how easily could greedy partisans work around it? Such a ruling would likely set off a torrent of new litigation rather than end current battles."
Wasserman notes that while the 2016 Trump-vs.-Clinton election was one of the closest in history, chances are that in your backyard it was a landslide. That's because of the nation's 3,113 counties or county equivalents, only 303 were decided by single digits, or less than 10 percent. In 1992, when it was Bush 41 v. Bill Clinton, 1,096 counties fit that description. And in that same time period, those counties where the margin in a presidential race exceeded 50 percentage points grew from 93 to 1,196.
Look at color-coded presidential election maps from 1992 to 2016 and you will see a dramatic increase of counties where the presidential vote was won by more than 20 points. That is not a result of politicians manipulating legislative boundary lines; county boundaries are fixed and don't change every 10 years. Instead, that is a reflection of a different phenomenon.
David Daley, author of Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy, doesn't buy it.
"I am not convinced we are self-sorting as much as everybody else says that we are," Daley said. "I mean, if you look at Pennsylvania in 2008 and at Pennsylvania in 2012, Democratic candidates win 100,000 more votes for the U.S. Congress in both of those years. In 2008, they win 12 of 19 seats. In 2012, they lose 13 of 18 seats. So it's not simply that all the Democrats move to be around like-minded folks in Pennsylvania or in Pittsburgh. … In 2008, the Democrats won more votes at the state House level in Michigan, in Ohio, in Pennsylvania, in North Carolina, and in Wisconsin. In all of those states, they controlled the majority after that. In 2012, the exact same thing happens. Democrats win more votes in all of these states, but sometimes they're staring down a supermajority of Republican control, so I don't think that there was a mass migration between those years. I think Republicans got terrifically good at drawing lines using big data and big technology and when we are as polarized as we are, the ability to draw the lines becomes all important as far as sorting us."
Probably both Wasserman and Daley are correct. But what could explain the self-sorting that Wasserman describes? There are a number of possibilities. One is that the 42 percent of eligible voters who sat out the 2016 presidential election believe their voices won't be heard because of where they live. Think of a conservative in a blue state like California or a liberal in a red state like Alabama. If they were to vote, the statewide outcome might not change, but there'd be fewer blowout counties. Alternatively, it might be due to osmosis. Perhaps people get swept up in the majority thinking of their neighbors. Or, perhaps we are now treating politics the way we do low taxes, low crime, and good schools — we seek out areas where we want to live based on the political climate.
Paul Chabot saw the latter as a business opportunity in the desire of some to live among the like-minded. A few years ago, he began a company called Conservative Move, which specializes in relocating conservative families to Texas from liberal enclaves like those that exist in Southern California. The slogan is "Helping Families Move Right."
"My wife and I have four young children, we moved from California in January to Texas, and when we moved here we realized that so many families had made the move long before we did but for the same reasons that we left California," he told me.
"We simply thought it'd be a great idea to create a business that markets exactly to what you just described, and the business model has blown up across this country," he said. "We can't keep up with demand, but I think it goes to [your] point. … Voters, human beings, really are looking to live in areas where they feel represented."
Of course, if Texas turns blue, which is entirely possible according to demographic projections, he might be moving them back to California.
"That's a really good point," Chabot said. "I think what Conservative Move really wants to do is not just help families sell their home in blue states and buy in red states, but we want to have a greater conversation about conservative values. So, we talk about the things that research shows families really want. They want good-paying jobs, good schools, and safe streets. By the very nature of our business, we help families leave areas that are lacking in those areas and moving to areas that consist of those. So, we hope that this actually strengthens the conversation and builds more resilient communities in America based on those principles."
I don't begrudge his business model, but it depresses me. That people would go to the length of actually wanting to leave an area so they can instead rub shoulders with the like-minded is not going to bridge our partisan divide.
Michael Smerconish can be heard 9 a.m. to noon on SiriusXM's POTUS Channel 124. He hosts "Smerconish" at 9 a.m. Saturdays on CNN. @smerconish