A new way to attack gerrymandering

From Think Progress:

America’s anti-gerrymandering law is an incoherent mess.

Thirty years ago, in Davis v. Bandemer, the Supreme Court held that a partisan gerrymander may be struck down as unconstitutional upon proof of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Yet the Court struggled to determine where to draw the line between lawful and unlawful maps.

Nearly two decades later, in Vieth v. Jubelirer, the justices seemed even more confused. Four of them called upon federal courts to simply give up on solving the problem of partisan gerrymanders. Four others splintered into a maze of dissenting opinions, altogether proposing a total of three different standards for weighing alleged gerrymanders. In the middle, Justice Anthony Kennedy threw up his hands in frustration. “The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,” Kennedy wrote. Nevertheless, he concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”

Now, a dozen years after Kennedy despaired for want of a workable way to uncover partisan gerrymanders, two young scholars may have cracked the code. In a paper published in the University of Chicago Law Review last year, law professor Nicholas Stephanopoulos and political scientist Eric McGhee propose a mathematical formula judges can use to identify suspect maps. This formula is now the subject of a federal lawsuit, Whitford v. Nichol, which has survived two motions, submitted by defenders of Wisconsin’s Republican-drawn maps, that sought to kill the case. Moreover, because of a quirk of federal law, the case is overwhelmingly likely to wind up in the Supreme Court.

[…]

The test offered by the plaintiffs in Whitford, which is based on Stephanopoulos and McGhee’s scholarship, is not a perfect solution to the problem of gerrymandering. For one thing, it effectively gives lawmakers a free election where they can enact gerrymandered maps and not need to worry that a court will strike them down in advance of the election. This is because the only way to calculate a map’s efficiency gap is to first run an election under that map and then add up the wasted votes.

Additionally, it may not catch the most devious gerrymanders. In a nod to Davis‘ holding that plaintiffs must show “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” in order to prevail in a gerrymandering case, theWhitford plaintiffs explain that a high efficiency gap is not enough to prove gerrymandering, or even to establish a reputable presumption that a map is gerrymandered. Rather, to win their case, plaintiffs challenging a gerrymander must also show that the mapmakers acted with discriminatory intent when they drew the maps.

That’s probably not going to be a high bar to clear in Whitford where it is uncontested that Wisconsin Republicans “hired a law firm and a political scientist to design an Assembly plan that would maximize the electoral advantage of Republicans.” In other cases, however, lawmakers may learn to do a better job of covering their tracks.

Whatever its flaws, however, the plaintiffs’ proposed standard in Whitford does have one important virtue: it may have a better likelihood of prevailing in court than any other standard previously proposed by litigators. In federal litigation, defendants typically can make multiple attempts to convince a court to kill a case before it goes to a full trial. Whitford has now survived two of the most potent weapons in the Wisconsin defendants’ arsenal — a motion to dismiss and a motion for summary judgment. Significantly, they’ve done so despite the fact that the three-judge panel hearing this case includes a Reagan appointee and a George W. Bush appointee (the third judge was appointed by President Jimmy Carter).

The fact that two Republican appointees believe that Whitford deserves a full trial suggests that some conservative justices, like Kennedy, might be convinced that Stephanopoulos and McGhee have found the solution to the problem of partisan gerrymandering. Moreover, though the Supreme Court normally has discretion to turn away cases it does not want to hear, it has far less ability to ignore cases heard by three-judge district courts. So even if Kennedy (or, for that matter, a newly constituted Court that could soon include Supreme Court nominee Merrick Garland) would prefer not to wade into the fraught waters of partisan gerrymandering, it is far from clear that he’ll be able to avoid doing so.

The basics of the standard is measuring the number of “wasted” votes in each single-member district. Above a certain threshold, the evidence suggests that one party or the other has an unfair advantage. You can read the story and follow the links to see what you think about this proposed standard, the point is that if the courts buy it, it would greatly change how redistricting litigation is done. Among other things, it would apply equally to a map drawn by Democrats to screw Republicans. The plaintiffs in Wisconsin would have to win first, and then SCOTUS would have to take the case for this to be on the radar. Just keep it in mind, because it could be a factor in 2021 and beyond.

In other news, SCOTUS ruled on a redistricting case, too.

The Supreme Court upheld an Arizona redistricting commission’s right to draw legislative districts in a way that ensures minority representation, delivering a crushing rebuke on Wednesday to a group of Arizona tea party activists who’d sought to strike down the state’s redistricting maps in order to increase the voting power of rural white voters.

In Harris v. Arizona Independent Redistricting Commission, the plaintiffs were taking on Arizona’s Independent Election Commission, a body created through a 2000 ballot initiative intended to make redistricting less partisan. The commission produced its first legislative maps after the 2010 census. Its work came under fire almost immediately, primarily by Republicans. At one point, then-Gov. Jan Brewer (R) attempted to impeach the commission’s chair in what was seen as a power grab. When that failed, in 2012, the Republican-led state legislature filed a lawsuit arguing that the ballot measure that created the commission was unconstitutional because it deprived the legislature of its redistricting power. The lawsuit went all the way to the US Supreme Court, which last June ruled 5-4 in the commission’s favor.

In the current lawsuit, filed in 2014, the plaintiffs, all Republicans, argued that the commission diluted their voting power by packing more people into Republican districts while underpopulating Democratic ones. They wanted the court to mandate that all district have almost exactly equal populations; the current ones vary by 4 to 8 percent. The commission, in turn, responded that it drew the districts in such a way as to win approval from the Justice Department, in compliance with the Voting Rights Act. Due to Arizona’s long history of suppressing minority voting, it was one of the jurisdictions required under the Voting Rights Act to clear any changes to legislative districts with the Justice Department before implementing them. The Supreme Court gutted this requirement in Shelby County v. Holder in 2013, but it was in place when Arizona redrew its legislative maps.

If the Harris plaintiffs had been successful, the case could have opened the floodgates to lawsuits challenging how states around the country draw their legislative districts. But in an opinion written by Justice Stephen Breyer, the court ruled unanimously that Arizona’s maps were indeed designed to comply with federal law in ensuring minority representation, and that the minor population deviations were acceptable.

SCOTUSBlog explains what this unanimous decision means.

In his opinion for the Court, Breyer explained that the Constitution requires states to try to distribute residents evenly among legislative districts, but it “does not demand mathematical perfection.” In particular, states can draw districts with populations that aren’t perfectly equal if there is a good reason to do so – for example, to draw districts that are compact or to ensure that a city or county is not split up. And the fact that districts aren’t perfectly equal, standing alone, does not mean that a redistricting map violates the Constitution, Breyer explained, if the largest deviation from perfect equality is less than ten percent.

When, as in this case, the deviation is less than ten percent, plaintiffs like Wesley Harris and his fellow voters must meet a more difficult standard: they must show that “it is more probable than not” that the deviation is attributable to some other, illegitimate reason. And, the Court concludes, Harris cannot do so here. When the commission was drawing the maps after the 2010 census, its primary consideration was whether the maps would comply with the federal Voting Rights Act. Among other things, that act prohibits new redistricting plans that would decrease the number of districts in which minority groups can elect candidates of their choice. The evidence in the case, the Court reasons, reflects that any deviations from equally populated districts were largely attributable to the commission’s efforts to make sure that the plan contained enough of these “ability to elect” districts to pass muster under the Voting Rights Act.

But, the voters had protested, party politics must have entered (improperly) into the mix: after all, virtually all of the Democratic districts have populations that are lower than they would be if all districts contained the same number of people – which would give more voting power to the residents in those districts – while most of the Republican districts have populations that are greater than they would otherwise be, giving those residents less voting power. The Court seemed to regard this as a matter of correlation, rather than causation, though. Noting “the tendency for minority populations in Arizona in 2010 to vote disproportionately for Democrats,” it suggested that, in its efforts to ensure that it had enough “ability to elect” districts to comply with the Voting Rights Act, that the commission may have had to move “other voters out of those districts, leaving them slightly underpopulated.”

Both stories reference the recent Evenwel decision, since the plaintiffs in both cases were conservative activists. There’s some tension between this case and the Wisconsin one, since the Court ruled here that compliance with the Voting Rights Act is an acceptable reason for population variances in the service of drawing minority “ability to elect” districts, and a lot of these districts are going to show up as outliers in the wasted-vote test. I presume there’s a way to harmonize these two competing interests, either in the standard for calculating “wasted votes” or in a legal standard the courts will eventually devise. Just a reminder that redistricting is often messy no matter how it’s done. Daily Kos has more.

Related Posts:

• No partisan gerrymandering claims (yet) in Texas
• Another look at Texas redistricting litigation after the Alabama SCOTUS ruling
• Will the SCOTUS ruling on Alabama redistricting affect Texas?