The Justices Have Questions About How to Fix Partisan Gerrymandering

Next, take the social science the plaintiffs employed, in particular their preferred asymmetry metric: the efficiency gap. (For more on the efficiency gap, see this law review article I co-authored.) Justice Alito questioned whether the efficiency gap should be seen as “the Rosetta stone” of partisan gerrymandering. He asked how it handles “elections that are not contested,” why the benchmark for tallying “surplus votes” should be “50 percent of the votes, instead of the votes obtained by the runner-up,” and what to make of the finding by the efficiency gap’s creator, Eric McGhee, that “the effects of party control on bias … decay rapidly.”

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