National Review - October 30, 2017

22 | http://www.nationalreview.com OCTOBER 30 , 2017

I

N1932, four years before the outbreak

of the Spanish Civil War, the phil os o -

pher and essayist José Ortega y

Gasset declared that the “Catalan

problem” was impossible to solve. He is

reported to have said: “It is a perpetual

problem, which has always been, and will

remain as long as Spain exists.... It is

something that no one is responsible for; it

[lies in] the very character of that people;

it is its terrible destiny, which drags dis-

tress throughout its entire history.” In his

view, the best that could be hoped for

was that the Catalans, and their fellow

Spaniards, would recognize the intractable

nature of the problem and would conse-

quently avoid rash or unrealistic measures

that were bound to bring on disaster.

No such insight has informed the

recent conduct of the Catalan govern-

ment, whose quest for national indepen-

dence by means of the referendum it

staged on October 1, in defiance of the

Madrid government and Spain’s highest

court, threatens to tear Spain apart. Nor

has it informed the actions of the Spanish

prime minister, Mariano Rajoy, who is

mostly famous for his caution but who

has been uncompromising in his rejection

of Catalan demands. The two sides have

not talked to one another for several years,

and the rhetoric of both has been charac-

terized by hyperbole and intemperance.

The outcome has been a major constitu-

tional crisis, with mass protests in the

streets of Barcelona, Girona, and other

Catalan cities, followed by the botched

but violent attempts of the Guardia Civil

to stop the vote, resulting in injuries to

around 800 separatists and 40 police-

men. This has led to wide international

existing gap in Wisconsin is among the

most favorable to Republicans that

can be drawn within the boundaries of

traditional redistricting principles.

These simulations have im pressively

“scientific” names—e.g., “Markov

chain Monte Carlo simulations”—but

they cannot be programmed to replicate

real-world redistricting. Under court-

drawn maps that existed between 1998

and 2010, the “seven point” threshold

was exceeded in five of seven elections

in Wisconsin.

The efficiency gap (and the alterna-

tive measures proposed by redistricting

critics) does not reveal how much con-

centration of voters is “natural.” The

measure nonetheless establishes a pre-

sumption that the partisan composition

of the legislature should track (to some

unspecified degree) the statewide vote

totals for candidates of each political

party. But to presume that deviation

from proportionality is constitutionally

problematic is to judge the elections we

do hold (multiple single-member elec-

tions held in geographic districts where

voters select an individual) by the

degree to which the results resemble

those that would follow elections that

we do not hold (statewide elections in

which voters select a preferred party).

To make the latter the measure of the

former is to change the nature of leg-

islative elections and place pressure on

both legislatures and lower courts to

ensure partisan proportionality.

Nor is this presumption about propor-

tionality neutral. To be sure, Wisconsin

Republicans wanted to draw the most

favorable maps they could. As the Su -

preme Court has noted, that intention

will almost always be present. But if the

judiciary countered partisan gamesman-

ship by mandating that votes be equally

efficient and the results proportional, it

would be stepping in and helping

Wiscon sin Democrats solve the natural

problem that they face. Ironically, in the

interest of rooting out partisan bias, the Gill

plaintiffs seek to enlist the courts in their

partisan project.

The efficiency gap is nothing new

and does not move our redistricting

jurisprudence to a law-based, judicially

manageable standard. Its failure sug-

gests that the Viethplurality had it right

in 2004. Sometimes the absence of an

answer means that we have asked the

wrong question.

The

Impossible

Dream

Catalonian nationalism throws

Spain into crisis

BY GERALD FROST

that candidate to win, are “inefficient”
or “wasted.” If more “wasted” votes
have been cast for the candidates of one
party than have been cast for the candi-
dates in another party, there is an “effi-
ciency gap”—i.e., the votes that were
cast for candidates of one party were
more “efficiently” translated into leg-
islative seats than were the votes for
candidates of the other party. Put in
more concrete terms, the plaintiffs com-
plain that Republican candidates for the
state assembly in Wisconsin won 48.6
percent of the votes cast for assembly
candidates in 2012 but 60.6 percent of
the seats. In 2014, GOP candidates won
52 percent of all votes but 63.6 percent
of the seats.
Gill is now before the Supreme
Court. In oral arguments earlier this
month, Chief Justice Roberts suggested
that this “new” measure might be
“sociological gobbledygook.” He
could be on to something. It is not that
the efficiency gap measures nothing. It
does tell us something about differ-
ences in the concentration of each
party’s voters within districts. But it
does not tell us whythey are concen-
trated. There is no reason to presume
that voters who prefer Democrats or
Republicans will be distributed evenly
across a state or that each party’s voters
will be geographically concentrated in
equal measure. For example, the plain-
tiffs in Gill argue that any efficiency gap
in excess of seven percentage points
indicates a problem. Yet under court-
drawn maps in place prior to the drawing
of the maps being challenged, the pro-
Republican efficiency gap averaged 7.6
percentage points.
Of course, the fact that the GOP
might have a geographic advantage in
the redistricting process doesn’t mean
that this tendency of Democratic voters
to be more geographically concentrated
can explain all the advantages that Re -
publicans have enjoyed. Although the
district court allowed for the possibility
that the gap might be explained away by
the greater concentration of the voters
of one party, it rejected that explanation
for the Wisconsin maps because it was
possible to draw a set of maps with a
lower efficiency gap. The plaintiffs also
made the argument (al though the lower
court did not rely on it) that the
Wisconsin maps are an “outlier” because
computer simulations show that the

Mr. Frost was the director of the London-based

Centre for Policy Studies and of the Institute for

European Defence and Strategic Studies, which he

founded.

Text