[EL] Gerrymandering, the wasted votes / efficiency method, and geographic concentration

Michael McDonald dr.michael.p.mcdonald at gmail.com
Sun Jun 18 18:01:18 PDT 2017


All partisan gerrymandering measures are a projection of the
two-dimensional seats to votes curve onto a single-dimension summary
statistic. This is what I meant earlier by a "simple transformation" as
these are not complex calculations, as one might see in physics or
topology. It is therefore not at all surprising to find a relationship
between two purportedly different measures because they all fundamentally
condense information from the same two-dimensional curve into a single
dimension statistic. My conjecture (admittedly, without proof) is that all
partisan gerrymandering measures can be related to one another. Some pairs
of measures will be in a one-way directional relationship: for example, the
majoritarian principle that the party that wins 50%+1 of the vote should
get 50%+1 of the seats cannot be transformed into a traditional partisan
bias measure, but one can "compute" the majoritarian principle from a
partisan bias measure.

For 14th Amendment(ish) partisan gerrymandering claims I prefer to evaluate
the seats to votes curve for observed and hypothetical elections rather
than rely on single summary statistics measures. (I say "ish" since some
claims may arise from state constitutions or statutes.) Characteristics of
the partisan gerrymander, such as how bias an responsiveness are being used
to further a political goal are more readily apparent when evaluating all
the available information rather than condensing to a single statistic. For
example, in one of my first cases in defending the work of the Alaska
Apportionment Board, I noted that the Republican plaintiffs put forth an
alternative map that had essentially zero partisan bias at a hypothetical
50% of the vote, but had a high degree of responsiveness such that
Republicans could expect to win a super-majority of seats in a typical
Alaskan election. This was the apparent goal of the plan: to create a
veto-proof super-majority. I don't believe that an efficiency gap - or any
single-statistic summary measure - would reveal this characteristic of
plaintiffs' map in this case. (For a similar reason, I don't subscribe to
partisan symmetry as a standard. If a party typically wins 60% of the vote,
it is uninformative to consider what will happen in the extremely
low-probability event that the party wins 40% of the vote.)

============
Dr. Michael P. McDonald
Associate Professor, University of Florida
352-273-2371
www.electproject.org
@ElectProject

On Sun, Jun 18, 2017 at 7:44 PM, Nicholas Stephanopoulos <
nicholas.stephanopoulos at gmail.com> wrote:

> In his article, Benji proves mathematically that (assuming equal district
> turnout) the efficiency gap is equal to the difference between the parties'
> respective average margins of victory (weighted by the number of seats won
> by each party). This is quite a useful proof. It means, in particular, that
> the differential competitiveness measure advanced by some scholars isn't
> actually a separate metric. Rather, it's identical to the efficiency gap.
> As measures of partisan gerrymandering proliferate, this is a nice move in
> the direction of convergence.
>
> On Sun, Jun 18, 2017 at 6:17 PM, Cover, Benjamin (bcover at uidaho.edu) <
> bcover at uidaho.edu> wrote:
>
>> I have an article forthcoming in the Stanford Law Review that evaluates
>> the efficiency gap measure. I hope to post a draft to SSRN soon, after
>> incorporating helpful feedback on earlier versions from several reviewers,
>> including Eric.
>>
>>
>>
>> The efficiency gap is conceptually distinct from, but mathematically
>> related to, competitiveness.
>>
>>
>>
>> At the level of an individual district, the disparity in wasted votes is
>> a linear function of the margin of victory. When the victor prevails 75-25,
>> both parties waste an equal number of votes; the winning party wastes more
>> votes if the margin is greater, and fewer votes if the margin is smaller.
>>
>>
>>
>> A plan's efficiency gap is an average of the wasted vote disparities
>> across all districts. Thus, a plan's efficiency gap is a function of the
>> difference in average margin of victory between D-won and R-won districts.
>> This accords with the logic of packing and cracking - a plan favors one
>> party over another when the favored party wins many districts by small
>> margins and the disfavored party wins a few districts by large margins.
>> Note that a plan's efficiency gap is a function of *differential*
>> average competitiveness - not *overall* competitiveness. A zero-gap plan
>> can be highly competitive or highly uncompetitive, so long as it is not
>> differentially competitive. This means that there are two ways to eliminate
>> or reduce an efficiency gap. One method – which I call “unpacking” – will
>> increase overall competitiveness. The other method – “decracking” – will
>> decrease overall competitiveness.
>>
>>
>>
>> However, the sensitivity of the efficiency gap is also a function of the
>> plan’s competitiveness. Ignoring turnout effects, the efficiency gap (G) is
>> a simple function of the statewide vote margin (V) and the statewide seat
>> margin (S).
>>
>>
>>
>> G = S – 2V
>>
>>
>>
>> The derivative of this function with respect to V is:
>>
>>
>>
>> dG/dV = R – 2
>>
>>
>>
>> Where R is responsiveness (the derivative of S with respect to V – the
>> slope of the tangent to the seats-votes curve), another measure of
>> competitiveness.
>>
>>
>>
>> To produce a low efficiency gap over a range of vote share, the plan must
>> approximate both double proportionality and double responsiveness over that
>> range. This limits how competitive – or uncompetitive – the plan can be.
>>
>>
>>
>> The draft I will soon post contains a detailed discussion of this and
>> other aspects of the efficiency gap measure. I would welcome feedback on
>> the draft as I continue to revise the piece.
>>
>>
>>
>> Sincerely,
>>
>> Benji
>>
>>
>>
>> Benjamin Plener Cover
>>
>> University of Idaho College of Law
>>
>>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] On Behalf Of
>> law-election-request at department-lists.uci.edu
>> Sent: Sunday, June 18, 2017 1:00 PM
>> To: law-election at department-lists.uci.edu
>> Subject: Law-election Digest, Vol 74, Issue 14
>>
>>
>>
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>>
>> Today's Topics:
>>
>>
>>
>>    1. Re: Gerrymandering, the wasted votes / efficiency method, and
>>
>>       geographic concentration (Daniel A. Smith)
>>
>>    2. Re: Gerrymandering, the wasted votes / efficiency method, and
>>
>>       geographic concentration (Eric McGhee)
>>
>>    3. Re: Gerrymandering, the wasted votes / efficiency method, and
>>
>>       geographic concentration (Nicholas Stephanopoulos)
>>
>>
>>
>>
>>
>> ----------------------------------------------------------------------
>>
>>
>>
>> Message: 1
>>
>> Date: Sat, 17 Jun 2017 17:44:04 -0400
>>
>> From: "Daniel A. Smith" <dasmith at ufl.edu>
>>
>> To: <law-election at department-lists.uci.edu>
>>
>> Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>>               method, and geographic concentration
>>
>> Message-ID: <d969f266-7a56-7da4-5ad3-00fa6a17ddb9 at ufl.edu>
>>
>> Content-Type: text/plain; charset="utf-8"; Format="flowed"
>>
>>
>>
>> I've always been perplexed by the logic of the efficiency gap...
>>
>>
>>
>> Nick and Eric provide an example of how the efficiency gap works in their
>> Chicago Law Review article.
>>
>>
>>
>> They write (p. 851-852) (notes and italics omitted):
>>
>>
>>
>>     The efficiency gap, then, is simply the difference between the
>>
>>     parties? respective wasted votes, divided by the total number of
>>
>>     votes cast in the election. Wasted votes include both ?lost? votes
>>
>>     (those cast for a losing candidate) and ?surplus votes? (those cast
>>
>>     for a winning candidate but in excess of what she needed to
>>
>>     prevail). Each party?s wasted votes are totaled, one sum is
>>
>>     subtracted from the other, and then, for the sake of comparability
>>
>>     across systems, this difference is divided by the total number of
>>
>>     votes cast. Figure 1 below shows how this calculation is carried out
>>
>>     for the hypothetical district plan discussed in the Introduction.
>>
>>     The bottom line is that there are 200 fewer wasted votes for Party A
>>
>>     than for Party B (out of 1000 total votes), resulting in an
>>
>>     efficiency gap of 20% in Party A?s favor.
>>
>>
>>
>> Here's their Figure 1:
>>
>>
>>
>>
>>
>> Let's leave aside for a moment some of the assumptions that go into
>> calculating the efficiency gap and the creation of their table (such as no
>> minor party candidates contesting the 10 seats, or that each seat actually
>> has two candidates on the ballot (as opposed to uncontested seats that have
>> to have imputed result totals)).
>>
>>
>>
>> Let's instead fill in the table with what on the face seem to be very
>> competitive districts: Every seat is decided by just 2 percentage points,
>> but Party A wins each of the 10 districts, 51% to 49%.
>>
>>
>>
>> Sure, Party B loses all the seats, but they all are competitive; each of
>> the seats could potentially flip to Party B in subsequent elections.
>>
>>
>>
>> If I were Party B, or a candidate or supporter of Party B, I'd take these
>> districts any day of the week.  Even if Party A strategically gerrymandered
>> them, each district is winnable given a wave election, the right
>> candidates, better messaging, higher (or lower) turnout, etc.
>>
>>
>>
>> Yet, the efficiency gap in my hypothetical scenario is 48%, more than
>> twice that of Nick and Eric's example. Despite the overall competitiveness
>> of my example, it would be a clear target for litigation according to the
>> efficiency gap logic.
>>
>>
>>
>> I guess my question to Eric and Nick and the broader listserv is, how
>> does the efficiency gap serve as a useful step in identifying a partisan
>> gerrymander given this obvious flaw?
>>
>>
>>
>> dan
>>
>>
>>
>> --
>>
>>
>>
>> daniel a. smith, ph.d.
>>
>> professor & university of florida research foundation professor political
>> science internship program coordinator department of political science
>>
>> 303 anderson hall              |  phone: 352-273-2346 <(352)%20273-2346>
>>
>> po box 117325                  |  fax:   352-392-8127 <(352)%20392-8127>
>>
>> university of florida          |  email: dasmith at ufl.edu
>>
>> gainesville, fl 32611-7325     |  http://people.clas.ufl.edu/das
>> mith/dasmith/
>>
>>
>>
>> https://twitter.com/electionsmith
>>
>>
>>
>> On 6/16/2017 7:21 PM, Eric McGhee wrote:
>>
>> >
>>
>> > I invented the efficiency gap, yet I would still agree with Michael
>>
>> > that it seems unlikely a ruling for the plaintiffs in Whitford would
>>
>> > rely exclusively on that metric.  (I would take issue with Michael?s
>>
>> > claim that the efficiency gap is a ?simple transformation? of existing
>>
>> > measures under all conditions, but that?s another story.)  It?s also
>>
>> > worth noting that the legal standard Nick Stephanopoulos and I
>>
>> > proposed (see http://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/)
>>
>> > would still treat a plan?s observed efficiency gap as only one step in
>>
>> > a process that would also allow a state to defend its plan as
>>
>> > unavoidable for other reasons.
>>
>> >
>>
>> > Fortunately for the Whitford plaintiffs, every conceivable measure of
>>
>> > bias or intent suggests the WI plan is a strong outlier. This includes
>>
>> > a variety of tests that account for the state?s underlying political
>>
>> > geography.  To my mind, this makes the Whitford case less a test of a
>>
>> > particular standard or measure, and more a test of whether the court
>>
>> > really wants to get involved in partisan gerrymandering in the first
>>
>> > place.
>>
>> >
>>
>> > Eric McGhee
>>
>> >
>>
>> > *From:*law-election-bounces at department-lists.uci.edu
>>
>> > [mailto:law-election-bounces at department-lists.uci.edu
>> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of
>>
>> > *Michael McDonald
>>
>> > *Sent:* Wednesday, June 14, 2017 4:12 PM
>>
>> > *To:* Election Law Listserv <law-election at uci.edu>
>>
>> > *Subject:* Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>> > method, and geographic concentration
>>
>> >
>>
>> > The efficiency gap is a simple transformation of prior seats to votes
>>
>> > partisan bias (gerrymandering detection) measures. If one party wins
>>
>> > more than 50% of the seats with 50% of the vote, all measures will
>>
>> > indicate that the party is favored in a redistricting plan. For this
>>
>> > reason, the efficiency gap is no more or less challenged than other
>>
>> > partisan bias measures and I suspect Justice Kennedy will find it
>>
>> > wanting for a bright line that identifies when a constitutional
>>
>> > violation has occurred, as he has done with every other measure
>>
>> > presented before him.
>>
>> >
>>
>> > Simulations are problematic for another reason. Redistricting is such
>>
>> > a complex graph partitioning problem that enumeration of all feasible
>>
>> > redistricting plans is impossible in finite time. As a consequence, we
>>
>> > cannot know the properties of any simulation algorithm that does not
>>
>> > generate all feasible plans with equal probability. The only algorithm
>>
>> > that is guaranteed to create plans with equal probability is one that
>>
>> > randomly assigns blocks to districts and rejects resultant plans than
>>
>> > are not legal. (This is similar to random sampling from a survey
>>
>> > perspective.) Unfortunately, this algorithm produces feasible plans
>>
>> > with exceedingly low frequency as to make it impossible to use in
>>
>> > finite time. All other proposed simulation algorithms have never been
>>
>> > proven that they can randomly sample. Indeed, we have shown that two
>>
>> > proposed algorithms fail random sampling on a small toy example (see:
>>
>> > https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583528). Failure
>>
>> > to demonstrate the ability to randomly sample means that an algorithm
>>
>> > could be biased in unknown ways, and might indicate the presence of a
>>
>> > gerrymander when none exists, or fail to detect a gerrymander when one
>>
>> > exists.
>>
>> >
>>
>> > The paper I link to describes the method of revealed preferences that
>>
>> > the Florida and Wisconsin courts applied to determine a partisan
>>
>> > gerrymander occurred. The method of revealed preferences simply looks
>>
>> > at the adopted plans as they were developed and traces how partisan
>>
>> > goals were elevated over traditional redistricting principles. In both
>>
>> > cases, the courts waved legislative privilege to enable plaintiffs to
>>
>> > see how the legislature incrementally traded off state constitutional
>>
>> > or other traditional redistricting principles for partisan advantage
>>
>> > through the course of generating test maps. In Florida, the efficiency
>>
>> > gap was not put before the court in evidence, and simulations failed
>>
>> > so spectacularly that the district court judge did not even bother to
>>
>> > describe the evidence in his ruling. In Wisconsin, the court found a
>>
>> > traditional partisan bias measure created by a consultant to the
>>
>> > legislature was informative, as was the efficiency gap, in tracing out
>>
>> > the legislature's preferences. I suspect that if Kennedy rules
>>
>> > favorably for the Wisconsin plaintiffs, it will be on on the strength
>>
>> > of the revealed preferences illuminated by applying both partisan bias
>>
>> > measures to the test plans defendants produced in discovery, and not
>>
>> > on the efficiency gap alone.
>>
>> >
>>
>> >
>>
>> > ============
>>
>> > Dr. Michael P. McDonald
>>
>> > Associate Professor, University of Florida
>>
>> > 352-273-2371 <(352)%20273-2371>
>>
>> > www.electproject.org <http://www.electproject.org> @ElectProject
>>
>> >
>>
>> > On Wed, Jun 14, 2017 at 4:52 PM, Mark Scarberry
>>
>> > <mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>>
>>
>> > wrote:
>>
>> >
>>
>> >     My thanks to Bruce and to another list member who replied
>>
>> >     off-list. Has this point been made in any of the briefs?
>>
>> >
>>
>> >     Mark
>>
>> >
>>
>> >     Mark S. Scarberry
>>
>> >     Pepperdine University School of Law
>>
>> >
>>
>> >
>>
>> > ----------------------------------------------------------------------
>>
>> > --
>>
>> >
>>
>> >     *From:*Bruce E Cain <bcain at stanford.edu <mailto:bcain at stanford.edu
>> >>
>>
>> >     *Sent:* Wednesday, June 14, 2017 1:43:49 PM
>>
>> >     *To:* Mark Scarberry; Election Law Listserv
>>
>> >     *Subject:* Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>> >     method, and geographic concentration
>>
>> >
>>
>> >     Mark
>>
>> >
>>
>> >     The efficiency gap is highly problematic for many reasons, and
>>
>> >     would be especially bogus for the reason you suggest if
>>
>> >     cross-sectional, over time data are used  rather than simulations,
>>
>> >     as is the case in Whitford?see Wendy Tam Cho?s web page or email
>>
>> >     her at <wendycho at illinois.edu <mailto:wendycho at illinois.edu>> for
>>
>> >     several forthcoming publications on this topic?
>>
>> >
>>
>> >     B
>>
>> >
>>
>> >     *From: *Mark Scarberry <mark.scarberry at pepperdine.edu
>>
>> >     <mailto:mark.scarberry at pepperdine.edu
>> <mark.scarberry at pepperdine.edu>>>
>>
>> >     *Date: *Wednesday, June 14, 2017 at 1:30 PM
>>
>> >     *To: *Election Law Listserv <law-election at uci.edu
>>
>> >     <mailto:law-election at uci.edu <law-election at uci.edu>>>
>>
>> >     *Subject: *[EL] Gerrymandering, the wasted votes / efficiency
>>
>> >     method, and geographic concentration
>>
>> >
>>
>> >     I'm sure someone must have made the following point (if it is
>> right).
>>
>> >
>>
>> >     The wasted votes / efficiency method for measuring partisan
>>
>> >     gerrymandering would seem to take "one person one vote" to the
>>
>> >     next level. It would benefit parties (currently the Democratic
>>
>> >     party) whose supporters are geographically concentrated.
>>
>> >
>>
>> >     Is that observation correct? Cites would be appreciated.
>>
>> >
>>
>> >     Mark
>>
>> >
>>
>> >     Mark S. Scarberry
>>
>> >     Pepperdine University School of Law
>>
>> >
>>
>> >
>>
>> >     _______________________________________________
>>
>> >     Law-election mailing list
>>
>> >     Law-election at department-lists.uci.edu
>>
>> >     <mailto:Law-election at department-lists.uci.edu
>> <Law-election at department-lists.uci.edu>>
>>
>> >     http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> >
>>
>> >
>>
>> >
>>
>> > _______________________________________________
>>
>> > Law-election mailing list
>>
>> > Law-election at department-lists.uci.edu
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
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>> ------------------------------
>>
>>
>>
>> Message: 2
>>
>> Date: Sat, 17 Jun 2017 21:58:36 +0000
>>
>> From: Eric McGhee <mcghee at ppic.org>
>>
>> To: "Daniel A. Smith" <dasmith at ufl.edu>
>>
>> Cc: "law-election at department-lists.uci.edu"
>>
>>               <law-election at department-lists.uci.edu>
>>
>> Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>>               method, and geographic concentration
>>
>> Message-ID: <0C4479F8-5C16-4A78-A4B2-3B9121E34986 at ppic.org>
>>
>> Content-Type: text/plain; charset="windows-1252"
>>
>>
>>
>> Sensitivity testing can identify such plans ("dummymanders" as Bernie
>> Grofman has called them). We cover that topic at length in the Chicago Law
>> Review piece, and the plaintiffs have taken it very seriously as well.
>> Thus, while technically one *can* calculate the EG without such analysis, I
>> wouldn't recommend it or you might be surprised by plans like this.
>>
>>
>>
>> Eric McGhee
>>
>>
>>
>> Sent from my iPhone
>>
>>
>>
>> On Jun 17, 2017, at 2:45 PM, Daniel A. Smith <
>> dasmith at ufl.edu<mailto:dasmith at ufl.edu>> wrote:
>>
>>
>>
>>
>>
>> I've always been perplexed by the logic of the efficiency gap...
>>
>>
>>
>> Nick and Eric provide an example of how the efficiency gap works in their
>> Chicago Law Review article.
>>
>>
>>
>> They write (p. 851-852) (notes and italics omitted):
>>
>>
>>
>> The efficiency gap, then, is simply the difference between the parties?
>> respective wasted votes, divided by the total number of votes cast in the
>> election. Wasted votes include both ?lost? votes (those cast for a losing
>> candidate) and ?surplus votes? (those cast for a winning candidate but in
>> excess of what she needed to prevail). Each party?s wasted votes are
>> totaled, one sum is subtracted from the other, and then, for the sake of
>> comparability across systems, this difference is divided by the total
>> number of votes cast. Figure 1 below shows how this calculation is carried
>> out for the hypothetical district plan discussed in the Introduction. The
>> bottom line is that there are 200 fewer wasted votes for Party A than for
>> Party B (out of 1000 total votes), resulting in an efficiency gap of 20% in
>> Party A?s favor.
>>
>>
>>
>> Here's their Figure 1:
>>
>>
>>
>>
>>
>> <fekjibkodaaonkda.png>
>>
>>
>>
>> Let's leave aside for a moment some of the assumptions that go into
>> calculating the efficiency gap and the creation of their table (such as no
>> minor party candidates contesting the 10 seats, or that each seat actually
>> has two candidates on the ballot (as opposed to uncontested seats that have
>> to have imputed result totals)).
>>
>>
>>
>> Let's instead fill in the table with what on the face seem to be very
>> competitive districts: Every seat is decided by just 2 percentage points,
>> but Party A wins each of the 10 districts, 51% to 49%.
>>
>>
>>
>> Sure, Party B loses all the seats, but they all are competitive; each of
>> the seats could potentially flip to Party B in subsequent elections.
>>
>>
>>
>> If I were Party B, or a candidate or supporter of Party B, I'd take these
>> districts any day of the week.  Even if Party A strategically gerrymandered
>> them, each district is winnable given a wave election, the right
>> candidates, better messaging, higher (or lower) turnout, etc.
>>
>>
>>
>> Yet, the efficiency gap in my hypothetical scenario is 48%, more than
>> twice that of Nick and Eric's example. Despite the overall competitiveness
>> of my example, it would be a clear target for litigation according to the
>> efficiency gap logic.
>>
>>
>>
>> I guess my question to Eric and Nick and the broader listserv is, how
>> does the efficiency gap serve as a useful step in identifying a partisan
>> gerrymander given this obvious flaw?
>>
>>
>>
>> dan
>>
>>
>>
>> --
>>
>>
>>
>> daniel a. smith, ph.d.
>>
>> professor & university of florida research foundation professor political
>> science internship program coordinator department of political science
>>
>> 303 anderson hall              |  phone: 352-273-2346 <(352)%20273-2346>
>>
>> po box 117325                  |  fax:   352-392-8127 <(352)%20392-8127>
>>
>> university of florida          |  email: dasmith at ufl.edu<mailto:dasmith
>> @ufl.edu>
>>
>> gainesville, fl 32611-7325     |  http://people.clas.ufl.edu/das
>> mith/dasmith/<http://people.clas.ufl.edu/dasmith/dasmith/
>> <http://people.clas.ufl.edu/dasmith/dasmith/%3chttp:/people.clas.ufl.edu/dasmith/dasmith/>
>> >
>>
>>
>>
>> https://twitter.com/electionsmith<https://twitter.com/electionsmith
>> <https://twitter.com/electionsmith%3chttps:/twitter.com/electionsmith>>
>>
>>
>>
>> On 6/16/2017 7:21 PM, Eric McGhee wrote:
>>
>> I invented the efficiency gap, yet I would still agree with Michael that
>> it seems unlikely a ruling for the plaintiffs in Whitford would rely
>> exclusively on that metric.  (I would take issue with Michael?s claim that
>> the efficiency gap is a ?simple transformation? of existing measures under
>> all conditions, but that?s another story.)  It?s also worth noting that the
>> legal standard Nick Stephanopoulos and I proposed (see
>> http://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/<http
>> ://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/
>> <http://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/%3chttp:/chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/>>)
>> would still treat a plan?s observed efficiency gap as only one step in a
>> process that would also allow a state to defend its plan as unavoidable for
>> other reasons.
>>
>>
>>
>> Fortunately for the Whitford plaintiffs, every conceivable measure of
>> bias or intent suggests the WI plan is a strong outlier.  This includes a
>> variety of tests that account for the state?s underlying political
>> geography.  To my mind, this makes the Whitford case less a test of a
>> particular standard or measure, and more a test of whether the court really
>> wants to get involved in partisan gerrymandering in the first place.
>>
>>
>>
>> Eric McGhee
>>
>>
>>
>> From: law-election-bounces at department-lists.uci.edu<mailto:law-ele
>> ction-bounces at department-lists.uci.edu> [mailto:law-election-bounces at d
>> epartment-lists.uci.edu <law-election-bounces at department-lists.uci.edu>]
>> On Behalf Of Michael McDonald
>>
>> Sent: Wednesday, June 14, 2017 4:12 PM
>>
>> To: Election Law Listserv <law-election at uci.edu><mailto:
>> law-election at uci.edu <law-election at uci.edu>>
>>
>> Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency method,
>> and geographic concentration
>>
>>
>>
>> The efficiency gap is a simple transformation of prior seats to votes
>> partisan bias (gerrymandering detection) measures. If one party wins more
>> than 50% of the seats with 50% of the vote, all measures will indicate that
>> the party is favored in a redistricting plan. For this reason, the
>> efficiency gap is no more or less challenged than other partisan bias
>> measures and I suspect Justice Kennedy will find it wanting for a bright
>> line that identifies when a constitutional violation has occurred, as he
>> has done with every other measure presented before him.
>>
>>
>>
>> Simulations are problematic for another reason. Redistricting is such a
>> complex graph partitioning problem that enumeration of all feasible
>> redistricting plans is impossible in finite time. As a consequence, we
>> cannot know the properties of any simulation algorithm that does not
>> generate all feasible plans with equal probability. The only algorithm that
>> is guaranteed to create plans with equal probability is one that randomly
>> assigns blocks to districts and rejects resultant plans than are not legal.
>> (This is similar to random sampling from a survey perspective.)
>> Unfortunately, this algorithm produces feasible plans with exceedingly low
>> frequency as to make it impossible to use in finite time. All other
>> proposed simulation algorithms have never been proven that they can
>> randomly sample. Indeed, we have shown that two proposed algorithms fail
>> random sampling on a small toy example (see:
>> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583528<
>> https://papers.ssrn.com/sol3/pa
>>
>> pers.cfm?abstract_id=2583528>). Failure to demonstrate the ability to
>> randomly sample means that an algorithm could be biased in unknown ways,
>> and might indicate the presence of a gerrymander when none exists, or fail
>> to detect a gerrymander when one exists.
>>
>>
>>
>> The paper I link to describes the method of revealed preferences that the
>> Florida and Wisconsin courts applied to determine a partisan gerrymander
>> occurred. The method of revealed preferences simply looks at the adopted
>> plans as they were developed and traces how partisan goals were elevated
>> over traditional redistricting principles. In both cases, the courts waved
>> legislative privilege to enable plaintiffs to see how the legislature
>> incrementally traded off state constitutional or other traditional
>> redistricting principles for partisan advantage through the course of
>> generating test maps. In Florida, the efficiency gap was not put before the
>> court in evidence, and simulations failed so spectacularly that the
>> district court judge did not even bother to describe the evidence in his
>> ruling. In Wisconsin, the court found a traditional partisan bias measure
>> created by a consultant to the legislature was informative, as was the
>> efficiency gap, in tracing out the legislature's pref  erences. I suspect
>> that if Kennedy rules favorably for the Wisconsin plaintiffs, it will be on
>> on the strength of the revealed preferences illuminated by applying both
>> partisan bias measures to the test plans defendants produced in discovery,
>> and not on the efficiency gap alone.
>>
>>
>>
>> ============
>>
>> Dr. Michael P. McDonald
>>
>> Associate Professor, University of Florida
>>
>> 352-273-2371 <(352)%20273-2371>
>>
>> www.electproject.org<http://www.electproject.org
>> <http://www.electproject.org%3chttp:/www.electproject.org>>
>>
>> @ElectProject
>>
>>
>>
>> On Wed, Jun 14, 2017 at 4:52 PM, Mark Scarberry <
>> mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
>> wrote:
>>
>> My thanks to Bruce and to another list member who replied off-list. Has
>> this point been made in any of the briefs?
>>
>>
>>
>> Mark
>>
>>
>>
>> Mark S. Scarberry
>>
>> Pepperdine University School of Law
>>
>> ________________________________
>>
>> From: Bruce E Cain <bcain at stanford.edu<mailto:bcain at stanford.edu>>
>>
>> Sent: Wednesday, June 14, 2017 1:43:49 PM
>>
>> To: Mark Scarberry; Election Law Listserv
>>
>> Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency method,
>> and geographic concentration
>>
>>
>>
>> Mark
>>
>>
>>
>> The efficiency gap is highly problematic for many reasons, and would be
>> especially bogus for the reason you suggest if cross-sectional, over time
>> data are used  rather than simulations, as is the case in Whitford?see
>> Wendy Tam Cho?s web page or email her at <wendycho at illinois.edu<mailto:
>> wendycho at illinois.edu>> for several forthcoming publications on this
>> topic?
>>
>>
>>
>> B
>>
>>
>>
>> From: Mark Scarberry <mark.scarberry at pepperdine.edu
>> <mailto:mark.scarberry at pepperdine.edu>>
>>
>> Date: Wednesday, June 14, 2017 at 1:30 PM
>>
>> To: Election Law Listserv <law-election at uci.edu<mailto:l
>> aw-election at uci.edu>>
>>
>> Subject: [EL] Gerrymandering, the wasted votes / efficiency method, and
>> geographic concentration
>>
>>
>>
>> I'm sure someone must have made the following point (if it is right).
>>
>>
>>
>> The wasted votes / efficiency method for measuring partisan
>> gerrymandering would seem to take "one person one vote" to the next level.
>> It would benefit parties (currently the Democratic party) whose supporters
>> are geographically concentrated.
>>
>>
>>
>> Is that observation correct? Cites would be appreciated.
>>
>>
>>
>> Mark
>>
>>
>>
>> Mark S. Scarberry
>>
>> Pepperdine University School of Law
>>
>>
>>
>> _______________________________________________
>>
>> Law-election mailing list
>>
>> Law-election at department-lists.uci.edu<mailto:Law-election at de
>> partment-lists.uci.edu>
>>
>> http://department-lists.uci.edu/mailman/listinfo/law-electio
>> n<http://department-lists.uci.edu/mailman/listinfo/law-election
>> <http://department-lists.uci.edu/mailman/listinfo/law-election%3chttp:/department-lists.uci.edu/mailman/listinfo/law-election>
>> >
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>>
>> Law-election mailing list
>>
>> Law-election at department-lists.uci.edu<mailto:Law-election at de
>> partment-lists.uci.edu>
>>
>> http://department-lists.uci.edu/mailman/listinfo/law-electio
>> n<http://department-lists.uci.edu/mailman/listinfo/law-election
>> <http://department-lists.uci.edu/mailman/listinfo/law-election%3chttp:/department-lists.uci.edu/mailman/listinfo/law-election>
>> >
>>
>>
>>
>> _______________________________________________
>>
>> Law-election mailing list
>>
>> Law-election at department-lists.uci.edu<mailto:Law-election at de
>> partment-lists.uci.edu>
>>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
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>>
>> ------------------------------
>>
>>
>>
>> Message: 3
>>
>> Date: Sat, 17 Jun 2017 22:07:28 +0000
>>
>> From: Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
>>
>> To: "Daniel A. Smith" <dasmith at ufl.edu>, Eric McGhee <mcghee at ppic.org>
>>
>> Cc: "law-election at department-lists.uci.edu"
>>
>>               <law-election at department-lists.uci.edu>
>>
>> Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>>               method, and geographic concentration
>>
>> Message-ID:
>>
>>               <CAKZh_83k+3CgSQ2A0E+BozC+vfWu
>> 2faFuq-A-OSdF=1o7PmKZw at mail.gmail.com>
>>
>> Content-Type: text/plain; charset="utf-8"
>>
>>
>>
>> Additionally, it's important to avoid conflating partisan symmetry and
>> competitiveness. The courts have held that there's nothing wrong with
>> creating uncompetitive plans that treat the major parties symmetrically
>> (see Gaffney v. Cummings). The crux of a partisan gerrymander is partisan
>> asymmetry, not a lack of competitiveness. Fortunately, all of the standard
>> measures of partisan symmetry (including but not limited to the efficiency
>>
>> gap) are conceptually and empirically distinct from competitiveness.
>>
>>
>>
>> On Sat, Jun 17, 2017 at 2:59 PM Eric McGhee <mcghee at ppic.org> wrote:
>>
>>
>>
>> > Sensitivity testing can identify such plans ("dummymanders" as Bernie
>>
>> > Grofman has called them). We cover that topic at length in the Chicago
>>
>> > Law Review piece, and the plaintiffs have taken it very seriously as
>> well.
>>
>> > Thus, while technically one *can* calculate the EG without such
>>
>> > analysis, I wouldn't recommend it or you might be surprised by plans
>> like this.
>>
>> >
>>
>> > Eric McGhee
>>
>> >
>>
>> > Sent from my iPhone
>>
>> >
>>
>> > On Jun 17, 2017, at 2:45 PM, Daniel A. Smith <dasmith at ufl.edu<mailto:
>>
>> > dasmith at ufl.edu>> wrote:
>>
>> >
>>
>> >
>>
>> > I've always been perplexed by the logic of the efficiency gap...
>>
>> >
>>
>> > Nick and Eric provide an example of how the efficiency gap works in
>>
>> > their Chicago Law Review article.
>>
>> >
>>
>> > They write (p. 851-852) (notes and italics omitted):
>>
>> >
>>
>> > The efficiency gap, then, is simply the difference between the parties?
>>
>> > respective wasted votes, divided by the total number of votes cast in
>>
>> > the election. Wasted votes include both ?lost? votes (those cast for a
>>
>> > losing
>>
>> > candidate) and ?surplus votes? (those cast for a winning candidate but
>>
>> > in excess of what she needed to prevail). Each party?s wasted votes
>>
>> > are totaled, one sum is subtracted from the other, and then, for the
>>
>> > sake of comparability across systems, this difference is divided by
>>
>> > the total number of votes cast. Figure 1 below shows how this
>>
>> > calculation is carried out for the hypothetical district plan
>>
>> > discussed in the Introduction. The bottom line is that there are 200
>>
>> > fewer wasted votes for Party A than for Party B (out of 1000 total
>>
>> > votes), resulting in an efficiency gap of 20% in Party A?s favor.
>>
>> >
>>
>> > Here's their Figure 1:
>>
>> >
>>
>> >
>>
>> > <fekjibkodaaonkda.png>
>>
>> >
>>
>> > Let's leave aside for a moment some of the assumptions that go into
>>
>> > calculating the efficiency gap and the creation of their table (such
>>
>> > as no minor party candidates contesting the 10 seats, or that each
>>
>> > seat actually has two candidates on the ballot (as opposed to
>>
>> > uncontested seats that have to have imputed result totals)).
>>
>> >
>>
>> > Let's instead fill in the table with what on the face seem to be very
>>
>> > competitive districts: Every seat is decided by just 2 percentage
>>
>> > points, but Party A wins each of the 10 districts, 51% to 49%.
>>
>> >
>>
>> > Sure, Party B loses all the seats, but they all are competitive; each
>>
>> > of the seats could potentially flip to Party B in subsequent elections.
>>
>> >
>>
>> > If I were Party B, or a candidate or supporter of Party B, I'd take
>>
>> > these districts any day of the week.  Even if Party A strategically
>>
>> > gerrymandered them, each district is winnable given a wave election,
>>
>> > the right candidates, better messaging, higher (or lower) turnout, etc.
>>
>> >
>>
>> > Yet, the efficiency gap in my hypothetical scenario is 48%, more than
>>
>> > twice that of Nick and Eric's example. Despite the overall
>>
>> > competitiveness of my example, it would be a clear target for
>>
>> > litigation according to the efficiency gap logic.
>>
>> >
>>
>> > I guess my question to Eric and Nick and the broader listserv is, how
>>
>> > does the efficiency gap serve as a useful step in identifying a
>>
>> > partisan gerrymander given this obvious flaw?
>>
>> >
>>
>> > dan
>>
>> >
>>
>> > --
>>
>> >
>>
>> > daniel a. smith, ph.d.
>>
>> > professor & university of florida research foundation professor
>>
>> > political science internship program coordinator department of
>>
>> > political science
>>
>> > 303 anderson hall              |  phone: 352-273-2346
>> <(352)%20273-2346>
>>
>> > po box 117325                  |  fax:   352-392-8127
>> <(352)%20392-8127>
>>
>> > university of florida          |  email: dasmith at ufl.edu<mailto:
>>
>> > dasmith at ufl.edu>
>>
>> > gainesville, fl 32611-7325     |
>>
>> > http://people.clas.ufl.edu/dasmith/dasmith/<
>>
>> > http://people.clas.ufl.edu/dasmith/dasmith/>
>>
>> >
>>
>> > https://twitter.com/electionsmith<https://twitter.com/electionsmith
>> <https://twitter.com/electionsmith%3chttps:/twitter.com/electionsmith>>
>>
>> >
>>
>> > On 6/16/2017 7:21 PM, Eric McGhee wrote:
>>
>> > I invented the efficiency gap, yet I would still agree with Michael
>>
>> > that it seems unlikely a ruling for the plaintiffs in Whitford would
>>
>> > rely exclusively on that metric.  (I would take issue with Michael?s
>>
>> > claim that the efficiency gap is a ?simple transformation? of existing
>>
>> > measures under all conditions, but that?s another story.)  It?s also
>>
>> > worth noting that the legal standard Nick Stephanopoulos and I
>>
>> > proposed (see http://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/<
>>
>> > http://chicagounbound.uchicago.edu/uclrev/vol82/iss2/4/>) would still
>>
>> > treat a plan?s observed efficiency gap as only one step in a process
>>
>> > that would also allow a state to defend its plan as unavoidable for
>>
>> > other reasons.
>>
>> >
>>
>> > Fortunately for the Whitford plaintiffs, every conceivable measure of
>>
>> > bias or intent suggests the WI plan is a strong outlier.  This
>>
>> > includes a variety of tests that account for the state?s underlying
>>
>> > political geography.  To my mind, this makes the Whitford case less a
>>
>> > test of a particular standard or measure, and more a test of whether
>>
>> > the court really wants to get involved in partisan gerrymandering in
>> the first place.
>>
>> >
>>
>> > Eric McGhee
>>
>> >
>>
>> > From: law-election-bounces at department-lists.uci.edu<mailto:
>>
>> > law-election-bounces at department-lists.uci.edu> [mailto:
>>
>> > law-election-bounces at department-lists.uci.edu] On Behalf Of Michael
>>
>> > McDonald
>>
>> > Sent: Wednesday, June 14, 2017 4:12 PM
>>
>> > To: Election Law Listserv <law-election at uci.edu><mailto:
>>
>> > law-election at uci.edu>
>>
>> > Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>> > method, and geographic concentration
>>
>> >
>>
>> > The efficiency gap is a simple transformation of prior seats to votes
>>
>> > partisan bias (gerrymandering detection) measures. If one party wins
>>
>> > more than 50% of the seats with 50% of the vote, all measures will
>>
>> > indicate that the party is favored in a redistricting plan. For this
>>
>> > reason, the efficiency gap is no more or less challenged than other
>>
>> > partisan bias measures and I suspect Justice Kennedy will find it
>>
>> > wanting for a bright line that identifies when a constitutional
>>
>> > violation has occurred, as he has done with every other measure
>> presented before him.
>>
>> >
>>
>> > Simulations are problematic for another reason. Redistricting is such
>>
>> > a complex graph partitioning problem that enumeration of all feasible
>>
>> > redistricting plans is impossible in finite time. As a consequence, we
>>
>> > cannot know the properties of any simulation algorithm that does not
>>
>> > generate all feasible plans with equal probability. The only algorithm
>>
>> > that is guaranteed to create plans with equal probability is one that
>>
>> > randomly assigns blocks to districts and rejects resultant plans than
>> are not legal.
>>
>> > (This is similar to random sampling from a survey perspective.)
>>
>> > Unfortunately, this algorithm produces feasible plans with exceedingly
>>
>> > low frequency as to make it impossible to use in finite time. All
>>
>> > other proposed simulation algorithms have never been proven that they
>>
>> > can randomly sample. Indeed, we have shown that two proposed
>>
>> > algorithms fail random sampling on a small toy example (see:
>>
>> > https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583528<
>>
>> > https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583528>). Failure
>>
>> > to demonstrate the ability to randomly sample means that an algorithm
>>
>> > could be biased in unknown ways, and might indicate the presence of a
>>
>> > gerrymander when none exists, or fail to detect a gerrymander when one
>> exists.
>>
>> >
>>
>> > The paper I link to describes the method of revealed preferences that
>>
>> > the Florida and Wisconsin courts applied to determine a partisan
>>
>> > gerrymander occurred. The method of revealed preferences simply looks
>>
>> > at the adopted plans as they were developed and traces how partisan
>>
>> > goals were elevated over traditional redistricting principles. In both
>>
>> > cases, the courts waved legislative privilege to enable plaintiffs to
>>
>> > see how the legislature incrementally traded off state constitutional
>>
>> > or other traditional redistricting principles for partisan advantage
>>
>> > through the course of generating test maps. In Florida, the efficiency
>>
>> > gap was not put before the court in evidence, and simulations failed
>>
>> > so spectacularly that the district court judge did not even bother to
>>
>> > describe the evidence in his ruling. In Wisconsin, the court found a
>>
>> > traditional partisan bias measure created by a consultant to the
>>
>> > legislature was informative, as was the efficiency gap, in tracing out
>>
>> > the legislature's preferences. I suspect that if Kennedy rules
>>
>> > favorably for the Wisconsin plaintiffs, it will be on on the strength
>>
>> > of the revealed preferences illuminated by applying both partisan bias
>>
>> > measures to the test plans defendants produced in discovery, and not on
>> the efficiency gap alone.
>>
>> >
>>
>> > ============
>>
>> > Dr. Michael P. McDonald
>>
>> > Associate Professor, University of Florida
>>
>> > 352-273-2371 <(352)%20273-2371>
>>
>> > www.electproject.org<http://www.electproject.org
>> <http://www.electproject.org%3chttp:/www.electproject.org>>
>>
>> > @ElectProject
>>
>> >
>>
>> > On Wed, Jun 14, 2017 at 4:52 PM, Mark Scarberry <
>>
>> > mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
>>
>> > wrote:
>>
>> > My thanks to Bruce and to another list member who replied off-list.
>>
>> > Has this point been made in any of the briefs?
>>
>> >
>>
>> > Mark
>>
>> >
>>
>> > Mark S. Scarberry
>>
>> > Pepperdine University School of Law
>>
>> > ________________________________
>>
>> > From: Bruce E Cain <bcain at stanford.edu<mailto:bcain at stanford.edu>>
>>
>> > Sent: Wednesday, June 14, 2017 1:43:49 PM
>>
>> > To: Mark Scarberry; Election Law Listserv
>>
>> > Subject: Re: [EL] Gerrymandering, the wasted votes / efficiency
>>
>> > method, and geographic concentration
>>
>> >
>>
>> > Mark
>>
>> >
>>
>> > The efficiency gap is highly problematic for many reasons, and would
>>
>> > be especially bogus for the reason you suggest if cross-sectional,
>>
>> > over time data are used  rather than simulations, as is the case in
>>
>> > Whitford?see Wendy Tam Cho?s web page or email her at <
>> wendycho at illinois.edu<mailto:
>>
>> > wendycho at illinois.edu>> for several forthcoming publications on this
>>
>> > topic?
>>
>> >
>>
>> > B
>>
>> >
>>
>> > From: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:
>>
>> > mark.scarberry at pepperdine.edu>>
>>
>> > Date: Wednesday, June 14, 2017 at 1:30 PM
>>
>> > To: Election Law Listserv <law-election at uci.edu<mailto:
>>
>> > law-election at uci.edu>>
>>
>> > Subject: [EL] Gerrymandering, the wasted votes / efficiency method,
>>
>> > and geographic concentration
>>
>> >
>>
>> > I'm sure someone must have made the following point (if it is right).
>>
>> >
>>
>> > The wasted votes / efficiency method for measuring partisan
>>
>> > gerrymandering would seem to take "one person one vote" to the next
>>
>> > level. It would benefit parties (currently the Democratic party) whose
>>
>> > supporters are geographically concentrated.
>>
>> >
>>
>> > Is that observation correct? Cites would be appreciated.
>>
>> >
>>
>> > Mark
>>
>> >
>>
>> > Mark S. Scarberry
>>
>> > Pepperdine University School of Law
>>
>> >
>>
>> > _______________________________________________
>>
>> > Law-election mailing list
>>
>> > Law-election at department-lists.uci.edu<mailto:
>>
>> > Law-election at department-lists.uci.edu>
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election<
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election>
>>
>> >
>>
>> >
>>
>> >
>>
>> >
>>
>> > _______________________________________________
>>
>> > Law-election mailing list
>>
>> > Law-election at department-lists.uci.edu<mailto:
>>
>> > Law-election at department-lists.uci.edu>
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election<
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election>
>>
>> >
>>
>> > _______________________________________________
>>
>> > Law-election mailing list
>>
>> > Law-election at department-lists.uci.edu<mailto:
>>
>> > Law-election at department-lists.uci.edu>
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> > _______________________________________________
>>
>> > Law-election mailing list
>>
>> > Law-election at department-lists.uci.edu
>>
>> > http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> --
>>
>> Nicholas O. Stephanopoulos
>>
>> Assistant Professor of Law
>>
>> University of Chicago Law School
>>
>> nsteph at uchicago.edu
>>
>> (773) 702-4226
>>
>> http://www.law.uchicago.edu/faculty/stephanopoulos
>>
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>> ------------------------------
>>
>>
>>
>> _______________________________________________
>>
>> Law-election mailing list
>>
>> Law-election at department-lists.uci.edu
>>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> End of Law-election Digest, Vol 74, Issue 14
>>
>> ********************************************
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
>
> --
> Nicholas O. Stephanopoulos
> Assistant Professor of Law
> University of Chicago Law School
> nsteph at uchicago.edu
> (773) 702-4226
> http://www.law.uchicago.edu/faculty/stephanopoulos
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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