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Tuesday, June 20, 2017

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations.  The caution has stemmed, broadly speaking, from two concerns:   First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative.  The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning.  It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization.  Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.  

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases.  We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence.  True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history.  Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end.  We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination.  But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics?  Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

We will be watching closely for sure! 

 

 

Posted by Dan Rodriguez on June 20, 2017 at 11:22 AM in 2016-17 End of Term, Constitutional thoughts, Daniel Rodriguez | Permalink

Comments

While Wisconsin is closely divided in statewide elections, the Democratic vote is inefficiently concentrated for legislative district purposes in Dane County (Madison) and the city of Milwaukee. Can we safely stipulate that this geographic concentration is not the result of some nefarious Republican plot?

Professor Rodriguez and the Brennan Center are not satisfied with judicial intervention in the districting process when gerrymandering, such as occurred in Illinois and Maryland by Democrats or Pennsylvania and Florida by Republicans, is undertaken. Rather, as they observe overwhelming concentration of Democratic voters in central cities nationwide, they now demand that geographically compact districts be done away with and that gerrymandering to offset this concentration not only be permitted but be insisted upon by the judiciary.

We've become inured to legal arguments, mostly from the liberal side but increasingly from conservatives as well, that personal political preferences should be elevated to constitutional requirement but this particular one is a breathtaking leap forward in that regard.

Posted by: PaulB | Jun 20, 2017 12:36:52 PM

You misspelt Stephanopoulos.

Posted by: Jr | Jun 21, 2017 4:38:38 AM

spelling corrected. thank you.

Posted by: dan rodriguez | Jun 21, 2017 8:23:16 AM

@PaulB I am calling foul.

The conservative advantage in rural counties has tilted a lot of districts towards the Republicans. But that doesn't mean gerrymandering can't happen. It actually makes it easier to gerrymander when you have heavy polarization across areas.

In Wisconsin, that means moving from a situation where a 50/50 split translates into Republicans winning a slight majority to one where Republicans win over 60% of seats.

There's a reason that this has been a top Republican priority, and it's not because they like wasting time and money (ok...maybe there's an element of that).

The crisis here is ultimately about norms. There are many ways for parties in power to cement their power by manipulating district lines/the voting process etc. Both parties do this within some bounds of decorum. But recently, the Republicans have really been pushing the envelope and stepping over the line of what is permissible--the question is just if the Supreme Court can figure out what that line should be.

Posted by: Eric Titus | Jun 21, 2017 1:25:36 PM

PaulB: Not at all sure how you got this from my post. A closer reading will suggest to you that I made no such claim ("Professor Rodriguez and the Brennan Center" . . . Huh?)

Eric: Perhaps you are right as a political matter, but the claim that gerymandering is a systematic strategy of Republicans is unlikely to sway Justice Kennedy, no?

Posted by: dan rodriguez | Jun 22, 2017 9:44:22 AM

The EG thesis has some problems. For example, suppose a state has 500 voters which are evenly split between Dems and Reps. Its five districts are apportioned to give each one 50 Dems and 50 Reps. If the Reps would run a slightly better campaign in each district one year and manage to flip one Dem in each district the Dems would have wasted 245 votes and the Reps would have wasted none. So the EG would be 245-0= 245 divided by 500 total votes which equals an efficiency gap of 0.49, which would mean the districts were wildly "presumptively" unconstitutional. This is obviously ridiculous. In this particular case, the proponents will say that the state can show that it had no evil partisan motive so a court shouldn't rule it unconstitutional.
But what if the partisan breakdown was, instead, 255 for GOP and 245 for Dems, and the legislature drew the districts so each district was 51-49 so as to give the GOP a leg up in each district? In this case there is no defense and according to this theory, the districts are unconstitutional even though each district is a perfect microcosm of the state. At bottom, this whole theory only begins to make sense if you think that legislatures should not be elected by district, but by proportionate representation.

Posted by: biff | Jun 22, 2017 7:29:56 PM

The EG thesis has some problems. For example, suppose a state has 500 voters which are evenly split between Dems and Reps. Its five districts are apportioned to give each one 50 Dems and 50 Reps. If the Reps would run a slightly better campaign in each district one year and manage to flip one Dem in each district the Dems would have wasted 245 votes and the Reps would have wasted none. So the EG would be 245-0= 245 divided by 500 total votes which equals an efficiency gap of 0.49, which would mean the districts were wildly "presumptively" unconstitutional. This is obviously ridiculous. In this particular case, the proponents will say that the state can show that it had no evil partisan motive so a court shouldn't rule it unconstitutional.
But what if the partisan breakdown was, instead, 255 for GOP and 245 for Dems, and the legislature drew the districts so each district was 51-49 so as to give the GOP a leg up in each district? In this case there is no defense and according to this theory, the districts are unconstitutional even though each district is a perfect microcosm of the state. At bottom, this whole theory only begins to make sense if you think that legislatures should not be elected by district, but by proportionate representation.

Posted by: biff | Jun 22, 2017 7:30:00 PM

Well, now I know why people's comments are doubled sometimes. Don't click "post" twice!

Posted by: biff | Jun 22, 2017 7:34:05 PM

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