SCOTUS takes on Gerrymandering

[Gandalf]

Gerrymandering inspires a kind of lyricism in government officials. In 1981, a California Democrat, having redrawn the boundaries of a congressional district, observed that his effort “curls in and out like a snake.” An Ohio state representative once regarded his own district as “a seahorse cut up by a boat propeller,” and Maryland’s Third Congressional District reminded a federal judge, more recently, of “a broken-winged pterodactyl, lying prostrate across the center of the state.” The term itself—gerrymandering—was coined in 1812, when Elbridge Gerry, the Governor of Massachusetts, signed a law creating a district so sinuous that, reportedly, the editor of the Boston Gazette saw it as a salamander. The newspaper’s cartoonist drew it as a “horrid Monster.”

The distorted shape of districts is the focus of one of the most anticipated cases the Supreme Court will hear this term: Gill v. Whitford, which will be argued today. The Gill case concerns a redistricting plan put into place in Wisconsin in 2011. Republican state legislators developed a new electoral map in secret and then passed it on a party-line vote. The effect was immediate. In the following election, in 2012, Democrats won a majority of votes but Republicans captured sixty out of ninety-nine seats in the State Assembly. “I’d never seen anything like that before,” one Wisconsin state senator, a Republican, told Emily Bazelon of the Times. Something “powerful and unbelievable” had taken place—something new and different from the crude, ad-hoc gerrymandering of old, the kind that was practiced even before Gerry gave it a name.
What’s new are the technological tools available to district-drawers. Today, a consultant armed with an algorithm and a precinct map can build a district that is better insulated against shifts in the political winds, and better able to remain in one party’s control for years. The most extreme manipulations of the map are seen in states such as Pennsylvania, North Carolina, and Michigan, where single-party control of the redistricting process has allowed the G.O.P. to entrench an advantage. In 2014, for example, Republican candidates for the State Senate in Michigan won only the slimmest majority of the vote—fifty-one per cent—but secured seventy-one per cent of the seats.

Gerrymandering is not exclusive to the G.O.P., but Democratic efforts have been scattershot. Republicans, during the 2000 and 2010 redistricting cycles, systematically redrew much of the nation’s political map. The A.P., using a new statistical method, has found clear, built-in biases toward Republicans in elections at both the state and the federal level. The yield, for Republicans in the U.S. House of Representatives, was as many as twenty-two additional seats—enough of a surplus to account for almost all of the G.O.P.’s advantage in the chamber. “The outcome was already cooked in,” John McGlennon, a professor of government and public policy at the College of William and Mary, told the A.P. On the Web site FiveThirtyEight, David Wasserman, the U.S. House editor for the Cook Political Report, declared that “the congressional map has a record-setting bias against Democrats.”

Remarkably, some Republicans are joining Democrats in a collective cry for help. Of the many amicus briefs in the Gill case, two of the most surprising were submitted by bipartisan groups of state legislators and members of Congress. The congressional brief, signed by ten sitting Republicans (and eight more who are former members), describes a “cascade of negative results” that flow from excessive partisan gerrymandering: an indifference toward swing voters and their concerns; “extreme behavior” aimed at appeasing the party’s base and staving off a primary challenge; and a devaluing of compromise and “results-oriented representation.” The state officials paint a similarly grim picture. “This weaponization of demography,” they argue, is leading legislators in safe seats to ignore phone calls and delete e-mails from constituents, to avoid public events, and to shut down hearings, all to minimize their exposure to voters from the opposing party. The atmosphere in state houses has grown “toxic” and “tribal.” Both briefs end with a striking appeal for judicial intervention in the legislative branch. “Only this Court” can save us, the state legislators say, while the House members plead for “constitutional ground rules” that can “mend the broken parts of our political process. The Court should give the Nation that chance.”

How likely is the Court to step in? There is not a great deal of mystery as to where the conservative Justices stand. During the last term, Justice Samuel Alito dissented in Cooper v. Harris, a case concerning race-based redistricting in North Carolina. Alito argued that “political strategy,” not race, had determined the shape of the districts, and that political gerrymandering is “a traditional domain of state authority.” If the Court “illegitimately invades” that domain, he warned, it will “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.” Alito cited a 2004 decision, Vieth v. Jubelirer, in which Justice Antonin Scalia—joined by a plurality of the Court’s conservatives—declared flatly that “the judicial department has no business entertaining the claim” of unlawful partisan gerrymandering, “because the question is entrusted to one of the political branches.” Though Scalia died last year, he might still have the last word. That is, unless Justice Anthony Kennedy speaks up. In the Vieth case, Kennedy issued a concurring opinion, endorsing the Court’s decision but not its insistence that the Court could never devise a “workable standard” for determining abuse in partisan gerrymandering. “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” Kennedy argued. Scalia mocked this as “never-say-never” jurisprudence.

Today, the Court has a range of workable standards to choose from, many of which were not available in 2004. Technology has made it easier to gerrymander—but also easier to identify the most egregious cases. This might induce Kennedy to join the Court’s four liberals in the Gill case. Political scientists have charted Kennedy’s “leftward drift” over the past three decades. But he remains, as ever, difficult to predict. As recently as 2015, he joined a 5–4 opinion, written by Justice Ruth Bader Ginsburg, that expressed profound distaste for partisan gerrymandering and upheld Arizona’s creation of an independent redistricting commission to address the problem. But during the past decade Kennedy has, more often than not, joined the conservative bloc in restricting the right to vote—and to have that vote count for something. Kennedy was in the majority in Shelby County v. Holder, in 2013, the decision that overrode Congress and gutted the Voting Rights Act of 1965. He signed onto an opinion, in 2011, that knocked down Arizona’s attempt to address political corruption by providing public financing for elections. He wrote the majority opinion in Citizens United v. Federal Election Commission, in 2010, in which he helped to cripple the government’s ability to limit the role of money in politics and made the astonishing claim that “the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

Another amicus brief in the Gill case comes from a group of historians. It makes plain that the Founding generation saw gerrymandering as a grave and unconstitutional affront to the democracy they had built. They had, after all, risked their lives to challenge the British notion of “virtual” representation—of parliamentary districts that were wildly inconsistent in shape, size, and population density, the “rotten boroughs” that had slipped into the sea but still sent a member to the House of Commons, the “pocket boroughs” under the control of a single landowner. The distinctly American answer was “actual” representation: conscientiously drawn districts, frequent elections, protections against entrenched interests—all intended, in the words of The Federalist No. 57, to instill in elected officials “a habitual recollection of their dependence on the people . . . They will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed.” Absent “fair representation,” Edmund Randolph of Virginia warned the Constitutional Convention, “the injustice of the Govt. will shake to its foundations.” These are the stakes facing the Court this week.

Jeff Shesol, a former speechwriter for President Clinton, is the author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court” and is a partner at West Wing Writers.

Here's hoping that this works out.

[bilateralrope]

Is Gerrymandering a problem that can be solved while remaining with an FPP system ?

Sure, it can be reduced. But solved ?

[houser2112]

Is Gerrymandering a problem that can be solved while remaining with an FPP system ?

Sure, it can be reduced. But solved ?

How those districts are used is orthogonal to the process of how those districts are drawn. The decennial census determines how many reps a state can send to Congress. FPP is only one method of determining who those reps are. Each district could use a different voting process to elect the reps, even.

[Khaat]

“the judicial department has no business entertaining the claim” of unlawful partisan gerrymandering, “because the question is entrusted to one of the political branches.”

?... Which is why we have checks and balances in our form of government from the Constitution: when one branch abuses its power, the other branches are entrusted with the authority by design to reign it in. SCOTUS rules on the Constitutionality of laws, that is its sole purpose: to oversee the Legislative branch, and by extension, the Executive branch. Seriously, does Scalia's quote not explicitly undermine this basic principle of our form of government?

[Elheru Aran]

“the judicial department has no business entertaining the claim” of unlawful partisan gerrymandering, “because the question is entrusted to one of the political branches.”

?... Which is why we have checks and balances in our form of government from the Constitution: when one branch abuses its power, the other branches are entrusted with the authority by design to reign it in. SCOTUS rules on the Constitutionality of laws, that is its sole purpose: to oversee the Legislative branch, and by extension, the Executive branch. Seriously, does Scalia's quote not explicitly undermine this basic principle of our form of government?

Forget already how much of a partisan hack Scalia was?

[Khaat]

Forget? No. Question the man saying he really has no authority to do his job? Yes. I know that if I turned in a report saying "it's someone else's job", I would be out of one.

[Elheru Aran]

A bit late for that one.

But I do think that in certain ways, the SCOTUS has too much power. Lifetime appointments for one thing. Not a bad idea in theory in the late 1700s... when 'lifetime' meant 'probably appointed sometime in their 50s, dies in their 60s or early 70s'. Not so tenable here when it's more like 'appointed 50s, dies 90s'. It might not be a BAD idea to set up some sort of limit on that.

Likewise... isn't there practically no way to remove a Justice? I see there is the option of impeachment, but it's *extremely* rare (as in, only ONCE did it actually happen, though Fortas was threatened with it back in the 60s but he resigned first).

[The Romulan Republic]

Why do I have a horrible feeling that this is going to be a five/four win for gerrymandering on the basis of the likely illegitimate (because Trump won illegally and anyway, that seat should have been Obama's to fill) Gorsuch's vote?

[Alyrium Denryle]

Why do I have a horrible feeling that this is going to be a five/four win for gerrymandering on the basis of the likely illegitimate (because Trump won illegally and anyway, that seat should have been Obama's to fill) Gorsuch's vote?

Kennedy is still on the bench and he's not insane. Roberts might also surprise you.

[MKSheppard]

Oh good, we might have a chance of unfucking Maryland's Congressional Districts.

[The Romulan Republic]

Why do I have a horrible feeling that this is going to be a five/four win for gerrymandering on the basis of the likely illegitimate (because Trump won illegally and anyway, that seat should have been Obama's to fill) Gorsuch's vote?

Kennedy is still on the bench and he's not insane. Roberts might also surprise you.

True. I do have some respect for Roberts, despite his being a conservative judge, because he's shown that he doesn't simply rule on party lines.

Really, as much as I despise Gorsuch's appointment on principle, I'm not sure the court is all that more conservative now than it has been for many years. I mean, before Gorsuch, that seat was occupied by Scalia.

[Jub]

Gerrymandering seems like it could be solved by restricting districts to simple shapes with a limited number of sides. Toss in a couple exceptions for following significant natural barriers and you can't make these awful districts legally.

This is outside of the power of the court to do and the government has no interest in doing this, but such a law should be lobbied for.

[Vendetta]

I think the main solution to gerrymandering is to minimise the amount of influence humans have on drawing up electoral boundaries.

[Patroklos]

Gerrymandering seems like it could be solved by restricting districts to simple shapes with a limited number of sides. Toss in a couple exceptions for following significant natural barriers and you can't make these awful districts legally.

This is outside of the power of the court to do and the government has no interest in doing this, but such a law should be lobbied for.

Take a look at the Wisconsin district map, it basically is this. Wisconsin is a very poor example of the odd shaped district gerrymander, for that you have to look at Maryland or Chicago. That's not the only way to do it mind you, but there are no salamanders in Wisconsin.

[Simon_Jester]

The Court can't impose a specific, detailed set of rules for gerrymandering, but it can rule that gerrymandering is unconstitutional because XYZ and direct that the specific state in question remedy the issue so that its district organization no longer causes problem XYZ. It's the state's job to comply with the court order, then.

[Ralin]

The Court can't impose a specific, detailed set of rules for gerrymandering, but it can rule that gerrymandering is unconstitutional because XYZ and direct that the specific state in question remedy the issue so that its district organization no longer causes problem XYZ. It's the state's job to comply with the court order, then.

Without a specific, detailed set of rules how exactly can they prove that something is a case of gerrymandering and how to fix it? No matter who draws the district lines or how someone is going to benefit more than others, even if the 'who' is an excited golden retriever puppy and the 'how' is him running back and forth over a big map of the state while he chases the ball.

[Patroklos]

This is the crux of Kennedy's comments on the matter. He is seeking a standard through which to adequately measure Gerrymandering, which then gives you a way to tell if its been adequately fixed. The problem has always been the plaintiffs claiming that disparate outcomes in elections in and of itself justifies intervention (people make the same claim about the EC), and this has been a failing argument for Kennedy.

This time around the plaintiffs has brought in all sort of statistical tests with the hopes one blows up Kennedy's skirt. They are probably all doomed to fail because politics ain't math and a few of them are ridiculously flawed even if it was, but its possible they might get one to stick with the swing Justice.

The only true requirement for voting regulations the SC has really harped on is one person one vote, which is where the civil rights voting actions by the court are based from. Another tact is to the vote as First Amendment, and this has gained traction in modern opinions.

[bilateralrope]

This is the crux of Kennedy's comments on the matter. He is seeking a standard through which to adequately measure Gerrymandering, which then gives you a way to tell if its been adequately fixed.

I'm thinking that a simple standard would be to compare the percentage of votes each party gets to the percentage of seats they get in an election. If the difference is less than the percentage of a single seat, then it's fixed. But that requires the borders to be tested at election time.

If you want a test that can be done between elections that produces a similar result, it would be to look at the predicted margin of victory the winner of each district has. With the goal for that margin to be as large as possible in all but one district. I suspect that adopting that standard will make district shapes even worse than they are today.

[TheFeniX]

"If your district map looks like an Elder Scrolls dungeon: you might be gerrymandering."

Gerrymandering might be hard to define, but I've found it's stupidly easy to spot in the most egregious cases, and even in some lesser examples. There's places, some posted about on this forum, I could literally just lift off the map, throw in some bad guys and some clutter, and release a map pack for the latest video game. And you've got options here, some are hilariously bad "corridor shooter" maps such as one in Texas that reaches from San Antonio all the way to Austin. Ones covering areas like Sugar Land are more like a Metroid Prime map in that they have giant boxes connected through narrow hallways.

Really though, who the fuck thought it was a good idea to give the ability for people seeking election to draw out how the votes to get them elected are combined?

[Kingmaker]

Seriously, does Scalia's quote not explicitly undermine this basic principle of our form of government?

No? The Supreme Court has declined to rule on cases because the subject was deemed a 'political question'. In the past, gerrymandering has been held to be one of these things because no one had presented a viable standard for what constituted partisan gerrymandering, and that's what is being reiterated in the quote (or at least in the opinion the source is drawn from).

As far as I'm aware, this case will be the first time someone has seriously attempted to present a model/models to the SC as measures of partisan gerrymandering, so they may have a solid chance of getting the court to accept a standard.

Gerrymandering might be hard to define, but I've found it's stupidly easy to spot in the most egregious cases, and even in some lesser examples.

The most egregious case, sometimes. But not necessarily; cracking schemes that split a large bloc of voters over a number of districts won't necessarily look that weird. And it can get more subtle than that. If anything, gerrymandering is easy to define, but hard to definitively detect.

Things are also complicated by the question of how districts should be drawn. Do you want minority districts? Districts that represent communities? Maximally competitive? Geographically compact? Because the US population is (to some extent - obviously not to the degree you see in places like PA or IL) naturally gerrymandered in certain ways, and different priorities in creating districts will tend to misrepresent them in certain ways.

Really though, who the fuck thought it was a good idea to give the ability for people seeking election to draw out how the votes to get them elected are combined?

The alternative at the time was to let the Federal government do it, and that was a pretty hot issue when they were writing the Constitution up. Plus, the ability to gerrymander was (at the time) far less because you didn't have the data, established voting patterns, etc...

[TheFeniX]

Things are also complicated by the question of how districts should be drawn. Do you want minority districts? Districts that represent communities? Maximally competitive? Geographically compact? Because the US population is (to some extent - obviously not to the degree you see in places like PA or IL) naturally gerrymandered in certain ways, and different priorities in creating districts will tend to misrepresent them in certain ways.

You can't fix gerrymandering. Even a completely automated computer process is going to lead to some votes getting squashed by the masses. However, when you're lassoing large blocks of minority voters across two major metropolitan areas for use in "gimme" districts, it becomes amazingly apparent that we aren't even trying. It fact, politicians are actively hostile toward Democracy.

People in San Antonio, one of Texas's "fuck-huge" cities, are being represented by a person living in Austin and also have to share representation with people in said city. That's dumb.

Scroll down MKSheppard's picture and stare at it for a bit. Then, if you're like me, you just laugh at the insanity.

The alternative at the time was to let the Federal government do it, and that was a pretty hot issue when they were writing the Constitution up. Plus, the ability to gerrymander was (at the time) far less because you didn't have the data, established voting patterns, etc...

At the least, that would have lead to a situation where more than just the people/party who DIRECTLY benefit from the gerrymandering would have been involved in the process. This would likely lead to R-R in two states working to scratch each others backs. Which sucks. But this ALSO means they have to scratch the back of Democrats in other states.

[bilateralrope]

"If your district map looks like an Elder Scrolls dungeon: you might be gerrymandering."

Do you want nice district shapes or do you want fair election results ?

With fair results being ones where the percentage of votes for each party is close to the percentage of seats they get.

I don't think you can get both.

I can't find any evidence of gerrymandering in New Zealand. But, back when we were on FPP, we still had some questionable results. Like the 1981 election.

[AniThyng]

"If your district map looks like an Elder Scrolls dungeon: you might be gerrymandering."

Do you want nice district shapes or do you want fair election results ?

With fair results being ones where the percentage of votes for each party is close to the percentage of seats they get.

I don't think you can get both.

I can't find any evidence of gerrymandering in New Zealand. But, back when we were on FPP, we still had some questionable results. Like the 1981 election.

Can lead to a situation where minority interest parties can end up with no representation at all because they're a minority everywhere..

[bilateralrope]

Can lead to a situation where minority interest parties can end up with no representation at all because they're a minority everywhere..

There isn't much you can do about that if you stick to a district based system for electing politicians. Which is all I'll say about that in this thread, as moving away from FPP is not an option SCOTUS has, so that discussion seems off topic for this thread.