Supreme Court Appears Split In Political Gerrymandering Case
The Supreme Court appears split on the question of whether or not partisan Gerrymandering is unconstitutional.
The Supreme Court heard oral argument today in a case that could have a huge impact on American politics and the manner in which Congressional and state legislative districts are drawn every ten years:
WASHINGTON — Justice Anthony M. Kennedy has long been troubled by extreme partisan gerrymandering, where the party in power draws voting districts to give itself a lopsided advantage in elections. But he has never found a satisfactory way to determine when voting maps are so warped by politics that they cross a constitutional line.
After spirited Supreme Court arguments on Tuesday, there was reason to think Justice Kennedy may be ready to join the court’s more liberal members in a groundbreaking decision that could reshape American democracy by letting courts determine when lawmakers have gone too far.
Justice Kennedy asked skeptical questions of lawyers defending a Wisconsin legislative map that gave Republicans many more seats in the State Assembly than their statewide vote tallies would have predicted. He asked no questions of the lawyer representing the Democratic voters challenging the map.
There was something like consensus among the justices that voting maps drawn by politicians to give advantage to their parties are an unattractive feature of American democracy. But the justices appeared split about whether the court could find a standard for determining when the practice was unconstitutional.
“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr., “but if we are going to impose a standard on the courts, it has to be something that’s manageable.”
Some of the court’s more liberal members said the problem represented a crisis for democracy and that the Supreme Court should step in.
“What’s really behind all of this?” Justice Ruth Bader Ginsburg asked. She answered her own question: “The precious right to vote.”
In extended remarks, Chief Justice John G. Roberts Jr. expressed worry that the court’s authority and legitimacy would be hurt were it to start striking down voting districts in favor of one political party or another.
“That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” he said.
Paul M. Smith, a lawyer for the Democratic voters, urged the court to act. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse,” he told the justices.
Without the Supreme Court’s intervention, Mr. Smith said, other states will follow Wisconsin’s lead. The round of redistricting that will follow the 2020 census, he said, “will produce a festival of copycat gerrymandering the likes of which this country has never seen.”
The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party wins an outsize number of seats. The court has, however, left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.
The problem, Justice Kennedy wrote in a 2004 concurrence, is that no one has devised “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.
On Tuesday, he pressed Erin E. Murphy, a lawyer for Wisconsin lawmakers, about whether a state law could require drawing districts to have the maximum number of votes for a given political party. Other justices followed up on the point, and Ms. Murphy gave equivocal answers.
Justice Kennedy grew frustrated. “I have to say that I don’t think you ever answered the question,” he said.
Justice Sonia Sotomayor asked Ms. Murphy more fundamental questions.
“Could you tell me what the value is to democracy from political gerrymandering?” Justice Sotomayor asked. “How does that help our system of government?”
Ms. Murphy said that gerrymandering “produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.”
That did not seem a sufficient reason, Justice Sotomayor said, “to stack the decks.”
Much of the argument concerned various statistical tests for identifying extreme gerrymandering. Misha Tseytlin, Wisconsin’s solicitor general, said the challengers were relying on flimsy and hypothetical social science evidence.
“Plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics,” he said.
Chief Justice Roberts told Mr. Smith that courts are poorly equipped to evaluate social science data. “It may be simply my educational background,” the chief justice said of the studies before the court, “but I can only describe it as sociological gobbledygook.”
Other justices seemed more comfortable with the studies.
“This is not kind of hypothetical, airy-fairy, we guess, and then we guess again,” Justice Elena Kagan said. “I mean, this is pretty scientific by this point.”
Justice Sonia Sotomayor said that “every single social science metric points in the same direction.”
There may be close cases, Justice Kagan said, but this was not one of them. “This map goes pretty much over every line,” she said.
(…)
Last year, a divided three-judge Federal District Court panel ruled that Republicans in Wisconsin had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”
The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.
The assessments of today’s arguments from other sources, such as The Washington Post, Politico, Reuters, and the Associated Press largely agree with those that Adam Liptak notes in his piece for The New York Times quoted above. Ian Millhiser at Think Progress is more optimistic in his summary and suggests that there’s a majority of the Court that appears to be ready to declare political gerrymandering unconstitutional. Over at SCOTUSBlog, meanwhile, Amy Howe also appears to think that it was a good day for the Plaintiffs in this case, although she’s not quite as optimistic as Millhiser. As I’ve noted before, though, it’s quite often inadvisable to attempt to guess at what a court will do on that basis alone since Judges and Justices frequently ask one side or the other questions that make it appear they are leaning in one direction only for us to discover when the decision is handed down that they ended up on the other side of the argument. Quite often, those questions get asked for reasons that have nothing to do with revealing what they believe and are based on addressing a point raised by one of their colleagues or to push one side or the other into considering arguments that they may not have anticipated. Additionally, there are times when Judges have been known to ask questions simply because it’s a legal point they have a personal interest in. Given that, I’d take Millhiser’s and Howe’s assessments of what the arguments indicate with a grain of salt for now.
That being said, it does appear that this will be one of what is likely to be many cases this term where Justice Kennedy will end up playing an important role and in which his vote will likely be the deciding vote. If he ends up agreeing with the Plaintiffs that egregious partisan Gerrymandering violates the Constitution’s Equal Protection Clause, then this could end up being a landmark case from the Court that will set off a new round of litigation in which redistricting schemes are challenged in court with as much frequency as claims of racially biased redistricting have been since the passage of the Voting Rights Act. If he remains true to his concurrence in the 2004 case noted above, though, then the Court’s decision will likely mean the death knell for this area of litigation for the foreseeable future unless and until Plaintiffs lawyers can come up with an argument that will have better chances with the Supreme Court. As noted when the Court accepted this case for appeal and in my preview of the Court’s new term that was posted yesterday, one thing that may influence Kennedy in this regard is that ruling for the Plaintiffs would open a legal can of worms that would end up flooding the Federal Courts with challenges alleging “political Gerrymandering” in every state in the union, most likely cases that would last for years after the redistricting plans have been passed into law and implemented in those states. As a general rule, the Justices have traditionally tried to avoid issuing opinions that end up turning the courts into the arbiters of something that, in the end, seems as though it properly should be purely a matter for the legislative and executive branches of government at the state and federal level. In any case, we’ll have to wait until the Court issues its opinion to see which way Kennedy came down.
Here’s the transcript of today’s argument:
Gill Et Al v. Whitford Et Al Transcript by Doug Mataconis on Scribd
Say what?
Ms. Murphy said that gerrymandering “produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.”
@gVOR08:
Yeah, I ran that through Google Translate and it gave me:
“We Republicans gamed the system successfully just as Democrats would have, so eat it.”
It’s like pornography, hard to define but recognizable when you see it. Preferring a hard and fast rule is fine, but sometimes people (and judges) actually have to use judgement.
Can’t wait to get rid of Luis Gutierrez and his horseshoe district!
Out of the Box Solution:
Eliminate congressional redistricting. When you register to vote, you get to pick which of your state’s congressional districts you want to be in.
Here’s where I wish “being a possible Supreme Court nominee” and “knowing even a little bit of math” weren’t mutually exclusive.
These questions are quantifiable. We can put a number on the probability that a given discrepancy between votes received and seats won could occur by chance. We can assess the degree of discrimination over a sequence of elections. If the justices were genuinely educated, they would know these things and be familiar and comfortable with them.
@DrDaveT: I have in the past had reason to note snarkily that innumeracy and conservatism seem to go together. On the other hand, it’s hard to say if Roberts simply doesn’t understand the math, or is determined to not understand the math. If you reject the evidence for AGW, it must to be easy to dismiss statistics.
@Stormy Dragon:
I prefer the concept of eliminating districts entirely and making every representative at large. If, say, Hypothetical State A has 10 representatives allotted to it, then at election time, there are as many names from both parties (or all parties) as want to run on the ballots, and everybody in the state gets the same congressional ballot with the same list of names on it.
The top 10 vote getters go to Congress. The rest see Janice for their parting gifts.
@gVOR08:
No, it’s simpler than that. Lawyers are drawn, to a first approximation, from a population of people who deliberately chose a curriculum with as little math as possible. There are exceptions, but they are exceptions, and the upper echelons of the profession consist almost entirely of liberal arts majors. That’s a major handicap when it comes to understanding the world quantitatively.
Ruth Bader Ginsburg is no more numerate than Antonin Scalia was — it’s not a conservative versus liberal thing; it’s a preferential selection thing. People who are really good at math don’t end up on the Supreme Court.
@DrDaveT: When I took the LSAT, it was almost half logic problems — aka, math.
If a decent lawyer doesn’t understand math, it’s because they don’t want to understand math.
The words are English, but I’m having trouble understanding what they mean.
I think she is saying “With proper gerrymandering, people will understand that there’s basically no point in voting, since party X will always remain in power?” — but that seems like an absurd thing to actually admit.
@HarvardLaw92:
“If, say, Hypothetical State A has 10 representatives allotted to it, then at election time, there are as many names from both parties (or all parties) as want to run on the ballots, and everybody in the state gets the same congressional ballot with the same list of names on it.”
Which would mean that all the Congresspersons from New York would be Democrats, and all the ones from Texas Republicans. Somehow, I think that would be a worse process from the point of view being represented by someone who shares one’s views than the current system.
Republicans have certainly abused gerrymandering and there’d be nothing wrong with them getting slapped down. It would also be hilarious to see the Democratic reaction when anti-gerrymandering results in Democrats losing seats. It would be even more hilarious to see the equal protection logic of the anti-gerrymanders applied to majority-minority districts that exist for no other reason than to virtually ensure the election of one race over any other.
What is not at all funny is that the Democratic retreat from and disdain for the democratic process has reached such an extent that they are literally begging the judicial branch to change the rules so they can win. Republicans haven’t done anything illegal. They haven’t even done anything underhanded. It’s all out in the open for everyone to see. Democrats don’t want the rules changed because of some theory of social science. It’s that Republicans keep being better at politics and rather than admit that and make the necessary changes to get better themselves, Democrats want judges to rejigger the political system so it’s more favorable to them.
That’s not going to end well.
Mike
@HarvardLaw92:
In Brazil it’s more or less like that. It makes campaigning pretty expensive(Specially in the large states) and gives disproportional advantage to parties controlled by the Evangelicals Churches.
The racial gerrymandering cases, such as in North Carolina when Democrats controlled the process (Hunt and Easley v. Cromartie), had the liberal members of the Court specifically vote to uphold districts because they were political gerrymanders instead of racial, and not addressable as a political question. That was the consistent view of the liberal wing; Hunt v Cromartie and Easley v Cromartie (originally Hunt II) came about differently because of O’Connor switching, but the the majority upholding the districts the second time agreed that they were drawn in order to give Democrats the maximum advantage. The Justices who disapproved of the districts also agreed that political gerrymandering was OK, just not racial.
Last year it was a racial decision, so everyone except for Justice Thomas switched sides in what looks like politics. A switch on political gerrymandering will still look like a political decision by many Justices (such as the liberals who used political gerrymandering as a reason to excuse pro Democratic gerrymandering in NC), but perhaps not quite so naked a reversal as last year.
In addition, deciding that political gerrymanders are also bad may reduce the frequent arguments in VRA cases on whether a gerrymander is racial (bad, except to the extent the VRA requires race to be used) or political (always acceptable to this point.)
@Moosebreath:
I’m not sure that I buy that. The electorate in Texas, for example, is loaded with Democrats. Upstate NY, politically speaking, is quite red. My own home state of Maryland is something like 35% Republican, but 7 of its 8 representatives are Democrats (and that is very much the result of gerrymandering). Both sides do it, and it stinks.
After all, if the GOP stood to win every congressional seat in Texas or Democrats would naturally dominate the Maryland delegation, gerrymandering wouldn’t be necessary in the first place.
Something that may not have been clear in my proposal – each voter from Hypothetical State A gets to vote for only one representative from the entire list of choices, not ten.
I’d like to see a result where the objective is to make every seat as competitive as possible. It forces a move to the center. We’d have fewer ideologues in Congress. Unfortunately, that objective would most likely also erase what little diversity we have in Congress.
I do hope that something is done about this. Extreme gerrymandering will only get worse the better we get at data collection, and it’s a threat to democracy and is much to blame for the current state of ineptitude in the US House. I half expect specific households to get divided in the next round of redistricting.
As a programmer, of course my first thought was some sort of automated redistricting algorithm. But looking into it, of course there have already been several attempts and they tend to be unsatisfactory. For example, a relatively simple program that keeps subdividing the population based on location will usually end up violating the Voters Rights Acts, because minorities will never have a district where they are the majority and can therefore choose their own representation.
Although that path isn’t hopeless, because you can keep adding in more complexities. But in the end, it needs some sort of human review and/or vote. All better explained here.
@Franklin:
The problem is that the criteria of what makes a voting district good or not good is largely subjective, so any automated redistricting algorithm will necessarily incorporate a particular set of biases that may not be shared by the entire electorate.
I’m hoping that the Court will step in here and apply a national ban on it. One of the things driving gerrymandering is the perception that, if we don’t do it, the other side will. Republicans have gerrymandered their states but Democrats have also gerrymandered the hell out of Maryland and used to gerrymander California (until they discovered that they could rig the system so that statewide races were between two Democrats). And when I was growing up and the Democrats controlled the South, they gerrymandered like you wouldn’t believe.
Republicans will still have an advantage in districting since Democratic voters tend to be more concentrated. But fewer Rorschach blot districts will go a long way toward restoring faith in the system.
(If the Court declines to do it, I would favor a Constitutional Amendment, but that will never happen.)
Legal question:
What is the rationale for deciding that racial gerrymandering is unconstitutional, but political gerrymandering is a-ok? The net effect (to effectively negate someone’s vote) seems the same.
And – I get that the court is reluctant to throw the doors open to gerrymandering suits from the losing political party in all 50 states. But if past case law has addressed racial gerrymandering, then there must be some method that past courts have used to determine whether districts are reasonably drawn, right?
@HarvardLaw92:
This may be because I am a lawyer and therefore cannot fathom the math (@DrDaveT is describing me), I cannot help but believe that @HarvardLaw92‘s undistricted state approach would leave me, a voter in downstate Illinois, with a Congressional caucus all hailing from Chicago, even if we all got to vote for only one representative.
Perhaps not fully on topic, but still very frustrating: in Illinois we have at least twice “successfully” petitioned to put an item on our ballot to have the state redistricted by a non-partisan (or balanced-partisan) panel and twice had the Democratic legislature successfully sue to keep it off the ballot. That is frustrating.
@CET:
Because the 15th Ammendment protects voting rights on the basis of race, but there’s not equivalent that protects voting rights on the basis of political party.
@MBunge:
I’m not following – are you arguing that the GOP isn’t gerrymandering districts to give themselves a significant advantage in state elections, or that they are, but it isn’t technically illegal, so vae victus.
@CET: It is difficult to make sense of his meltdown, but I think he is arguing the following:
1) both sides do it (which everybody already acknowledges), and
2) that’s okay because it’s legal (conflating morality with legality, as Republicans often do), and
3) it should remain legal because it irritates Democrats
@MBunge: If you can set up a system where a majority of the voters choose one party and that party comes out on the short end of a 60-40 split in power, that might be a proper application of rules on one man one vote but it is legitimacy crushing as the system is telling people that political organizing and voting for preferred candidates who as a group are more popular than their non-preferred candidates does not matter.
It removes the Madisonian check of competing factions as one faction does not have to worry about losing their seats no matter what they do
@HarvardLaw92:
“Something that may not have been clear in my proposal – each voter from Hypothetical State A gets to vote for only one representative from the entire list of choices, not ten.”
That was not clear. I suspect it won’t work well either, as people are likely to vote for the first familiar name on the ballot who they support. This makes ballot position very important.
““That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the
country,one particular political faction with which I hold common interests,” he said.”Fixed that for him.
@gVOR08:
I can go with “B” in the case of Roberts. No problem. The “a lot of sociological gobbleygook” was the line that did it for me.
@Gustopher: Try this on for size (adapted from an attribution to Stalin):
@Hal_10000: Top two finishers balloting will stop favoring Democrats as soon as Republicans stop trying to run whack jobs that not even Republicans will vote for.
As Captain Planet used to say: “the power is in your hands.”
I think if the Supreme Court had ruled the other way in Evenwel v. Abbott, then gerrymandering could be dealt with. But they seemed uncomfortable with changing how most states do redistricting even to preserve one person one vote.
@StormyDragon: So U.S. Representatives would not need to appeal to the people that live in their district but get re-elected based on popularity in the state like with U.S. Senators? And they wouldn’t be accountable to people in their district either. Should make U.S. Representative races more about who is wealthy enough to advertise to the whole state.
@Just ‘nutha ig’nint cracker:
No, top two finishers is designed to have the general election in primary season, when no one votes, and the primary in general election season, when more do. If the GOP set that up in Texas and every race was between two Republicans, you’d be going ape.
As long as we are discussing gerrymandering, is there any rule that a district has to be continguous. Why can’t a district have precincts in one section of a state and others in a distant section? Other than tradition or custom that is.
@Joe:
That’s more or less what’s happen in Brazil. There are large regions that don’t elect representatives to Congress and State Assembly, and other regions(specially in rural areas) that keep electing people that are complete crooks because they fear losing representation in Congress. That, and the fact that Evangelical Megachurches have disproportional power because they can get small proportions of votes in a large geographical area.
@Hal_10000: No, I actually wouldn’t. Don’t live in Texas and don’t care who gets elected anymore, too old to give a rat’s a$$. Nations get the governments they deserve. (And so do states!)
Also, Texas GOP isn’t smart enough to figure out what left coasters were able to. And in Washington, where I live, people apparently got tired of having run offs between someone who got 60+% of the vote and someone who got 23% I live in a red county (68% Trump) and the GOP candidates are fairly good–except on corporate welfare for the Hawks and Mariners.
@Gustopher:
Sorry, no. Being good at logic is an excellent skill for lawyers (or anyone else), but it is not indicative of understanding anything at all about probability and statistics, or calculus, or algebra, or any other branch of math.
You can’t answer the question “how can we know whether we should think this is just coincidence” with logic; you can’t predict what effects climate change will have with just logic; you can’t decide what effect gun laws have on gun violence with just logic; you can’t tell whether gerrymandering is disenfranchising a specific subpopulation using only logic.
Aristotle was great at logic, but not so much at math.
The obvious solution is party lists. For example, in Israel, people vote for the party that best represents their views and trust that the candidates will adhere to that program. The current system has several disadvantages:
1. Weaker political parties allowing extremists to dominate primaries
2. Depriving the minority in a district the “significance” of their vote
3. Nonsensical and seemingly arbitrary boundaries for districts
4. Creating an ineffective Congress where there’s too much diversity of views, a corollary to weaker party discipline. I mean, can we truly say what one party stands for anymore? Can they even pass legislation anymore?
5. A shared complaint with first past the post plurality based elections – minimizing the impact of third parties that may more closely align with a voter’s preferences
Notice how all of these complaints are about the system and come from a neutral perspective more focused on design, as opposed to people like MBunge who always seem to make everything about partisanship.
This way say in Utah we have 4 congressional seats. If the vote splits 75-25 R-D, then the top 3 from the R’s submitted list of candidates will win election, and the first one on the D’s list will as well. This is inherently neutral with respect to partisanship. Ds will be penalized in California, Maryland, Massachusetts, while Rs will be in Alabama, Texas, Wisconsin. I don’t care what the net gain to either party is.
I never got the obsession with the VRA forcing majority minority districts. It’s inherently discriminatory, patronizing, and counterproductive to democracy.
@Hal_10000:
I was in CA when that law was passed. Both parties opposed it as they both felt it robbed them of their choice to put forward their chosen candidates. Strong democratic and republican partisans both opposed it. It was pushed through by independents that wanted more moderate candidates. You are wrong about the intent of the law. It does end up meaning that in most races it comes down to two democrats running in the end, a more liberal dem and a less liberal dem. Before the law the race would be between a more liberal dem and a conservative repub. Guess who won?
So, no, most liberals and moderates would be happy if Texas adopted a similar rule. It would mean that most races came down to a more and less crazy repub and the less crazy one would more likely win. As opposed to now where the more crazy one wins the primary and walks away with the general unopposed or weakly opposed.