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The Supreme Court and the Partisan Gerrymander

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I have a piece up at –appropriately enough — Democracy on the big gerrymandering case the Supreme Court agreed to hear next term:

Gill involves a particularly egregious case of gerrymandering. In 2010, a unified Republican government hired consultants to use sophisticated computer software in order to redraw districts in a way that would maximize Republican seats in the legislature, by concentrating likely Democratic votes and carefully diffusing Republican ones. The results were remarkable. In 2008, 29 districts in the state Assembly were within three points of the state’s presidential vote; in 2012, the first election after the gerrymander, there were only seven. And these changes produced the intended skew: Wisconsin Republicans got less than 49 percent of the vote—but won 60 of the seats in the state’s 99-member Assembly. Since then, Republicans have continued to parlay a nearly evenly split electorate into huge legislative majorities.

The potential constitutional issues with partisan gerrymandering should be obvious. An electoral map that awards 60 percent of the seats of a legislature to a party that got less than 50 percent of the vote in a two-party race is at complete odds with the essential holding of the great Warren Court decisions Baker v. Carr and Reynolds v. Sims. These decisions held that when states deliberately refused to redraw districts to reflect population shifts, with the inevitable result of effectively disenfranchising urban voters, they violated the equal protection clause of the Fourteenth Amendment. Reynolds held that in all elections, except those for the United States Senate (which is permanently malapportioned by the Constitution), legislative districts had to be drawn to reflect a “one person, one vote” standard. It is hard to see how districting that intentionally overrepresents one group of voters and underrepresents another can be constitutional under these precedents.

And yet, the Supreme Court has allowed partisan gerrymandering to get worse and worse over the years. In the 2004 case Vieth v. Jubelirer, the Supreme Court declined to rule a partisan gerrymander of the Pennsylvania legislature unconstitutional. Four justices—Antonin Scalia, William Rehnquist, Clarence Thomas, and Sandra Day O’Connor—held that partisan gerrymanders were inherently “non justiciable.” That is, even if partisan gerrymanders are unconstitutional, they are inherently a “political question” that cannot be resolved by the courts. According to Scalia’s plurality opinion, the appropriate remedy to a partisan gerrymander is the power given to Congress in Article 1, §4 to alter legislative districts, not judicial review.

But like the pre-Baker argument that all districting claims were nonjusticiable, this argument is transparently specious. For example, Democratic Congresses in the first half of the twentieth century had no incentive to alter malapportioned districts that favored state Democrats (and, therefore, also favored House incumbents because state legislatures draw congressional districts.) Petitioning a Republican Congress and President to remedy constitutional gerrymandering that favors Republicans in 2017 will be equally futile. This is precisely the kind of failure of ordinary democratic processes where judicial review is most defensible.

Despite the fact that Frankfurter’s assertions that the Supreme Court should not enter the POLITICAL THICKET of redistricting are some of the more specious in the history of the United States Reports (“the remedy available to disenfranchised voters is to petition their state representatives!”), they’re becoming Republican conventional wisdom. Indeed, their Evenwel concurrence suggests that Alito and Thomas believe Reynolds v. Sims was wrongly decided, and a Trumped-Up Court could very well severely curtail or outright overrule one-person-one-vote. And if Kennedy votes to uphold gerrymandering as extreme as Wisconsin’s, it will have been overruled de facto in any case.

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  • Denverite

    According to Scalia’s plurality opinion, the appropriate remedy to a partisan gerrymander is the power given to Congress in Article 1, §4 to alter legislative districts, not judicial review.

    I’m way out of my element on this, but wouldn’t Article I, section 4 only provide a remedy for gerrymandered *federal* districts? Meaning that a scheme that gerrymandered *state* legislative seats would be immune from Art. I, sec. 4 challenge?

    • Srsly Dad Y

      Seems right …? I think that’s partly why we had the Voting Rights Act? See Thornburg v. Gingles, 478 U.S. 30 (1986).

    • Joe_JP

      I’m somewhat confused with the text.

      Scalia’s opinion references that “Pennsylvania General Assembly establishing districts for the election of congressional Representatives” was at issue. The article says: “partisan gerrymander of the Pennsylvania legislature unconstitutional.”

      The legislature acted but it was concerned with the “19 Representatives in Congress,” not the state legislature. So, yes, Scalia spoke of congressional power to regulate “federal elections.”

      To the degree partisan gerrymanders of state legislatures violated the Equal Protection Clause, I gather Congress can regulate under Section Five of the 14A. The other more novel argument might rest on the Guarantee Clause.

      • Denverite

        The other more novel argument might rest on the Guarantee Clause.

        IIRC, there is old-but-still-good precedent saying that that’s nonjusticeable.

        • Joe_JP

          Right.

          But, took the idea here being congressional regulation being a possible way to deal with the question. If anything, making it nonjusticable would give them more discretion to do so.

      • Srsly Dad Y

        The case was about “the State’s Senate and House of Representatives.” Those chambers just have the same names as the houses of congress. Together they are called the General Assembly.

        The 14th Am and the Guarantee Clause are, I THINK, generally considered power-granting clauses, rather than clauses that create self-effectuating rights in citizens.

      • efgoldman

        I gather Congress can regulate under Section Five of the 14A.

        The Roberts court essentially voided the second clause of the 15th amendment in Shelby County. Why expect them to uphold the sanctity of the 14th?

        • Joe_JP

          I qualified my remarks by assuming partisan gerrymanders were unconstitutional. Kennedy, one of the five in Shelby, suggested they could be but was wary about judicial standards. If so, he could be open to congressional action in this specific area.

          Also, the Shelby opinion alleged certain states were being singled out. I gather the partisan gerrymandering regulation would apply nation-wide. But, sure, the Roberts Court can play Calvinball here too.

  • Jon_H11

    I’m very pessimistic about this. I have a hard time seeing “One person, one vote” extending to mean that political parties have a right to districts that result in proportional representation. And if I find it a stretch I doubt the Robert’s court will side with something so politically inexpedient for the Republicans.

    We need a constitutional amendment to make legislative apportionment non-partisan. And since that’s impossible, we’re basically screwed.

    • Murc

      I have a hard time seeing “One person, one vote” extending to mean that political parties have a right to districts that result in proportional representation.

      Yeah, I mean, I’m pretty outraged by partisan redistricting but I’m having trouble seeing how that, as a principle, navigates the court system. You can make a strong argument that you’re in complete compliance with Reynolds if all your districts have the same number of folks in’em, can’t you? Or am I wrong?

      • Jon_H11

        As I recall, the districts that didn’t comply were basically set up like the Senate, with each county having a set number of representatives. Or ones that might vary with population, but were tightly constrained so that urban areas were massively underrepresented.

        • jmauro

          This was the case in Kansas where the Kansas Senate was setup with one-county, one senator rule meaning the western counties had an outsized representation even though the population was a rounding error in the largest counties in the state.

    • Denverite

      We need a constitutional amendment to make legislative apportionment non-partisan. And since that’s impossible, we’re basically screwed.

      I don’t know about “screwed.” As many have noted, the thing about gerrymandering is that it turns a close-ish popular vote into a massive legislative advantage for one side, but it comes with a tipping point. If the vote is sufficiently one-sided, then *everything* will flip. At that point, and in the current environment, you’d think the Democrats will do the exact same thing and gerrymander the hell out of their states when they finally get into power. What you’ll see then is that the in-power party will cling to political power long after the popular sentiment has turned against them, including by taking anti-democratic measures, but eventually they’ll fail. It’s not ideal by any stretch, but I think it’s workable, at least in the medium term.

      • Phil Perspective

        At that point, and in the current environment, you’d think the Democrats will do the exact same thing and gerrymander the hell out of their states when they finally get into power.

        Why would the Democrats do that? They’re playing a different game remember? See Andrew Cuomo and NY, for starters. Or Illinois, where the state’s elected Democrats screwed over their base which resulted in Rauner.

      • Brett

        “Eventually” could be a very long time indeed. Otherwise it wouldn’t have taken Supreme Court decisions to pry open district-rigging back in the 1960s, after nearly two centuries of it in American politics.

    • Gregor Sansa

      I too am pessimistic. I remember the day Scalia died; I thought “OK, we get a decent median SCOTUS vote, and then partisan gerrymandering becomes illegal, and then we’re basically home free, the crazy party dies a demographic heat death”. That didn’t happen, and who knows how many years this setback will last.

      GOLD voting is the long-term answer I think. But “long term” means more than 5 years from now.

      • rm

        I thought the same thing, and y’know, it was a reasonable forecast. The demographic death of white supremacy, however, might never happen in a world defined by extremist & nativist politics driven by the stresses of climate change. I was hoping for a less dystopian future and it feels as though we came this close.

        I have no words for how much I hate Mitch McConnell.

        • Gregor Sansa

          Perhaps our best bet is to bait Trump into tweeting about Kennedy. Insults, praise, who cares; it would all disgust him.

          So we need Morning Joe to profile Kennedy.

          This is actually not a crazy idea.

  • Murc

    My understanding is that current conservative judicial theory is that as long as districts are equal in population, and as long as they at least vaguely conform to “compact and contiguous,” anything else a state does with regard to drawing them is perfectly legal.

    That… hrm.

    That might actually hold up. It doesn’t seem outright nutty on its face, at any rate.

    • Pat

      Think of it this way, Murc. The Wisconsin Republicans went to a great deal of effort to find a way to solidify their party’s power, by packing and cracking Democratic neighborhoods. They did this intentionally, to dilute the voting power of Democrats. We can apply statistical tests to show that they did this. Heck, they did the statistical tests in advance to make sure they got it right. They made no secret of it.

      Should it be legal? If not, what test can be applied to determine how much packing is too much packing? Me, I’m in favor of using math.

      That’s what Kennedy will get to decide.

      • Denverite

        If not, what test can be applied to determine how much packing is too much packing?

        Challengers to a particular redistricting map have the burden to show that the results of a legislative election are skewed vis-a-vis the aggregate popular vote. Once they make that showing, the burden shifts to the defendants to show that a nonpartisan redistricting mechanism was used (e.g., nonpartisan independent commission). If they can’t show that — for example, if the redistricting commission merely consisted of partisan actors voting in a partisan block — then the defendants have the burden to prove that the redistricting map *isn’t* impermissible partisan. Voila.

        • Gregor Sansa

          I like it.

        • Scott Lemieux

          Exactly.

      • Jon_H11

        It’s shouldn’t be legal. But it’s a hard argument to make that it isn’t currently legal. We really need to change the law to require district be drawn by non-partisan commissions. I think that’s the best you’ll be able to do.

        • Scott Lemieux

          If Clinton had won the election with a Democratic Senate, partisan gerrymandering would have almost certainly been ruled unconstitutional. It’s not even much of a stretch from Reynolds; it’s just a different mechanism to produce similar results.

          • Jon_H11

            I won’t argue against the first sentence, but I’m under no delusion that the Supreme Court is really anything but a super-legislature.

            But Reynolds was about raw counts being disproportional, not the ideological composition being skewed. Isn’t it the mechanism, not the result, that was in question? If the shoe were on the other foot, my partisan self wouldn’t feel one bit of compunction about ruling that way–as I’m sure Roberts won’t.

    • Whirrlaway

      it’s the old mens rea thing isn’t it? like obstruction of justice, to cite another present example.

      IMO what would work is an algorithmic apportionment. Optimize eg minimum boundary length …

  • Murc

    Lot of court blogging today, Scott. Do you have any plans for US Patent and Trademark Office vs. Tam? (The Slants case?)

    • NewishLawyer

      The result is not surprising but since there were three different justifications for the same end, it is hard to see how the law changes in the immediate future.

      Alito’s comments on the blurriness of commercial v. non-commercial speech strike me as the most far reaching for the future.

  • LeeEsq

    Partisan gerrymandering seems to be one of those things that people accept as part and parcel of a democracy. Its easier to accept if your side benefits by it but generally people expect political parties to do things that are unfair to maximize their power. When you see politics as a horse-race, team sport, or war by other name then this makes sense.

    • Dilan Esper

      The big key is computers have made it much worse. It was less consistent, less effective, and more of a localized issue before.

      • LeeEsq

        That’s true but still largely irrelevant to the idea of partisan gerrymandering as part and parcel of democracy.

    • sibusisodan

      Not sure this describes the UK very well.

      Constituency boundary reviews are conducted periodically by an independent body. The government of the day can fiddle with this, but only a little bit (changing the timing of the review, for example)

      • Gregor Sansa

        Canada, too.

      • Michael Cain

        Some states in the US as well (following the decennial census), mostly where ballot initiatives have installed independent — or at least balanced — redistricting commissions. Red Arizona and blue California are the best known. Also Washington, Idaho, and Montana. Colorado for state legislative districts.

  • Joe_JP

    Ian Millihiser at Think Progress had an interesting article on this and noted that the theory set forth in the case might have altered over twenty seats in the House of Representatives.

    The four liberal justices would have denied the stay.

    https://www.supremecourt.gov/orders/courtorders/061917zr_6537.pdf

    Why? Didn’t say. The most notable thing about taking the case might be the idea that it underlines Kennedy will stay on for at least another term.

  • Dilan Esper

    Still waiting for a post on The Slants case. Plenty of pixels were wasted on Dan Snyder’s trademark (and plenty of people here gave me a ton of shit for saying what the law actually provided- and of course, SCOTUS just confirmed I was right).

    • Joe_JP

      tl;dr: “told ya so”

      • Dilan Esper

        I’m a terrible political analyst, but a really good legal analyst (not surprising given a significant part of my job is recommending whether clients should pursue appeals- I need to know these things backwards and forwards).

        • Joe_JP

          People are paying too much attention to Dilan’s political analysis. He’s terrible at it. But then people think he’s wrong. So, maybe he’s not! It’s like a logic trap.

          Your job provides you some specific skill at certain legal questions. “Legal analysis” covers the gambit. And, even there, you very well might be wrong, especially since these questions repeatedly have various shades that even experts strongly disagree with. Finally, a good legal analyst has certain aspects as applied to a blog comment that is not quite the same as merely advising a client.

          Anyway, as I said, your point here was “I told ya so.” And, not knowing what thread you referenced, maybe that’s earned. :)

          • “Legal analysis” covers the gambit

            from check to mate! (Pace Ms. Parker).

          • Dilan Esper

            I don’t comment that much on legal issues outside my practice area. And I am careful to couch legal opinions where there is real uncertainty.

            Let’s put it this way- if Scott and I, or most of the commenters here and I, disagree on the likely result of a case, the state of the law, or something similar, the chances that I am right have proven to be quite high (Kennedy on TRAP laws, Tom Brady, Dan Snyder’s trademark, etc.).

    • rm

      Maybe it’s not always what you say that get you shit, but how you say it.

      • Dilan Esper

        That’s true and false.

        It’s true I am sometimes abrasive and that’s on me. But it’s false in the sense that the commenters were going to go after anyone who suggested that Snyder’s racist trademark was protected by the First Amendment.

    • Gregor Sansa

      Yes, there should totally be a post on the Slants. Though framing it around Dilan’s commenting history would be an unusual choice.

      • Joe_JP

        Maybe, it can be a music entry.

      • Just_Dropping_By

        Though framing it around Dilan’s commenting history would be an unusual choice.

        It would indeed be a different [meaningful pause] slant to take in discussing the issue.

        • Tyto

          YYYYYYYYYYYEAAAAAAHHHHHHHHHHHH!

  • CJColucci

    I’ll be interested to see whether Thomas, or Alito, or anyone else, reaches out to decide unnecessary things. It is laughably easy to write an opinion coming out the way they, presumably, want without opening up several cans of worms by going after the one-person-one-vote principle itself.

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