Author Topic: Democrats Must Become America’s Anti-Gerrymandering Party  (Read 2677 times)

Offline imchills

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American democracy is not working. We have a president who lost the popular vote by almost 3 million ballots, a Congress that reflects gerrymandered district lines rather than the will of the people and a voting system that discourages rather than encourages the high turnouts that are needed to establish a genuinely representative democracy.

The Republican Party, which has benefited from this dysfunction, is in no rush to change things. Indeed, it has at its highest levels embraced the voter-suppression lies and scheming of charlatans such as Kansas Secretary of State Kris Kobach and President Trump’s Orwellian “Presidential Advisory Commission on Election Integrity.” So it falls to progressive Democrats, nonaligned independents and third-party activists to take the lead in the struggle for democratic renewal.

For the Democrats, there are two ways to address the crisis. First, they can carry on as they always have and hope that they get better at being an opposition party within a fundamentally flawed system. Second, they could propose to reform the system in ways that would begin to realize the promise of competitive elections and popular democracy.

Rep. Don Beyer has chosen the bolder route. Last week, the Virginia Democrat proposed the Fair Representation Act, a plan to democratize congressional elections with a bold reform that could also be used to bring real competition to state legislative contests.

Explaining that “polarization and partisanship, both among voters and in Congress, have reached dangerous and scary heights,” Beyer says: “The Fair Representation Act is the bold reform America needs to be sure every vote matters, to defeat gerrymandering and ensure the House of Representatives remains the people’s House.”

Rob Richie, the executive director of FairVote, which has worked with Beyer to promote the measure, says, “The Fair Representation Act is the most comprehensive approach to improving congressional elections in American history.”

FairVote argues that, “Under the Fair Representation Act, all US House members will be elected by ranked-choice voting in new, larger multi-winner districts. This system would replace today’s map of safe red and blue seats that lock voters into uncompetitive districts, and elect members of Congress with little incentive to work together and solve problems…”

Here’s FairVote’s assessment of how the Beyer plan would work:

Smaller states with five or fewer members will elect all representatives from one statewide, at-large district. States with more than six members will draw multiwinner districts of three to five representatives each. Congress will remain the same size, but districts will be larger.

They will be elected through ranked-choice voting, an increasingly common electoral method used in many American cities, whereby voters rank candidates in order of choice, ensuring that as many voters as possible help elect a candidate they support. Under ranked-choice voting, if no candidate reaches the threshold needed to win, the candidate with the fewest votes is eliminated. When a voter’s top choice loses, their vote instantly goes to their second choice. The process repeats until all seats are elected.

Using this approach, 4 in 5 voters would elect someone they support. The number of voters in a position to swing a seat would immediately triple — from less than 15 percent in 2016 to just under half.

The districts themselves will be drawn by state-created, independent commissions made up of ordinary citizens. These larger districts would be nearly impossible to gerrymander for political advantage — and would force politicians to seek out voters with different perspectives and remain accountable to them.

That’s a lot of democracy — more than most partisan Republicans, and a good many partisan Democrats, are prepared to embrace.

But here is why Democrats should take the Beyer plan seriously: It focuses attention on the necessity of breaking the curse of gerrymandering while at the same time presenting the Democrats as a party that embraces competition rather than political gamesmanship.

The Republicans, with tremendous support from billionaire campaign donors such as the Koch brothers, have mastered the art of making elections noncompetitive. Americans hate the current system. They tell pollsters it is too owned by special interests, too mangled by money, too deferential towards political careerists and too disrespectful toward voters.

The people are angry about gerrymandering. They want competitive elections and true representative democracy. (A 2013 Harris poll found that 74 percent of Republicans, 73 percent of Democrats and 71 percent of independents object to the pro-politician, anti-voter methods of redistricting that now prevail in most states for congressional and legislative elections.)


Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #1 on: June 17, 2019, 01:08:47 pm »
Monday, 17th June 2019
U.S. Supreme Court spurns Virginia Republicans in racial gerrymandering case
No Appeals Allowed in lower courts in Virginia
by Lawrence Hurley

(WASHINGTON, D.C.) - The U.S. Supreme Court on Monday handed Republican legislators in Virginia a defeat, leaving in place a ruling that invalidated state electoral districts they drew because they weakened the clout of black voters in violation of the U.S. Constitution.

The justices, in a 5-4 decision, sidestepped a ruling on the merits of the case.

They instead found that the Republican-led state House of Delegates lacked the necessary legal standing to appeal a lower court ruling that invalidated 11 state House districts for racial discrimination.

Virginia Attorney General Mark Herring, a Democrat and the state's top law enforcement official, opposed the appeal and argued that the Republican legislators were not entitled to act on behalf of the state in the case.

The Supreme Court's action let stand a 2018 ruling by a federal three-judge panel that the 11 districts all violated the rights of black voters to equal protection under the law under the U.S. Constitution's 14th Amendment.

The state's House of Delegates "lacks authority to displace Virginia's attorney general as representative of the state," Justice Ruth Bader Ginsburg wrote for the court's majority.

"In short, Virginia would rather stop than fight on.

One house of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process," Ginsburg added.

The case involved a hot topic for the Supreme Court:

a practice called gerrymandering involving the manipulation of electoral district boundaries to marginalize a certain set of voters and increase the influence of others.

In this case, the Republican legislators were accused of racial gerrymandering to disadvantage black voters.

In two other major cases from Maryland and North Carolina, the justices are considering whether courts can curb gerrymandering aimed at purely partisan advantage.

They are due to rule in those cases by the end of this month.

At issue in the Virginia case was the state legislative map drawn by Republicans after the 2010 national census.

The new map is already being used.

Since the Virginia maps that were challenged in the case were drawn, Democrats have made gains in Virginia in both state and federal elections.

The current governor, Ralph Northam, and attorney general, Mark Herring, both are Democrats.

Northam has been involved in a racial controversy of his own this year after a racist photo from his 1984 medical school yearbook page surfaced.

Like other U.S. southern states, Virginia has a complicated racial history dating back to the era of slavery.

The voters who brought the legal challenge accused Republicans of packing black voters into certain state House districts to diminish their voting power and make surrounding districts more white and more likely to support Republicans.

Democrats have accused the acting-president's fellow Republicans in Virginia and other states of crafting such legislative maps in a way that crams black and other minority voters, who tend to favor Democratic candidates, into certain districts in order to reduce their overall sway in the state.

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Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #2 on: June 27, 2019, 07:42:18 am »
Thursday, 27th June 2019
United States Supreme Court allows partisan gerrymandering to continue


DECISION BELOW: 318 F.Supp.3d 777

Earlier this year, while Gill v. Whitford was pending before this Court, a threejudge district court invalidated North Carolina's 2016 congressional districting map as a partisan gerrymander.

After Gill was handed down, this Court vacated that decision and remanded for further consideration in light of Gill.

That period of reconsideration did not last long. In the decision below, the district court largely readopted its previous reasoning and became the first postGill court to divine a justiciable test-in fact, four tests-and invalidate a legislatively enacted map as a partisan gerrymander.

Although plaintiffs here, like those in Gill , sought to vindicate only generalized partisan preferences , the court concluded they had standing.

The court then found justiciable standards for partisan gerrymandering claims under the Equal Protection Clause, the First Amendment, and (uniquely in the history of redistricting litigation) the Elections Clauses of Article I.

The court found the 2016 map to violate each of those newly articulated tests and enjoined the State from using the map after the November 2018 elections.

The questions presented are:

1. Whether plaintiffs have standing to press their partisan gerrymandering claims.

2. Whether plaintiffs' partisan gerrymandering claims are justiciable.

3. Whether North Carolina's 2016 congressional map is, in fact, an unconstitutional partisan gerrymander

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Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #3 on: June 27, 2019, 08:18:29 am »
Cite as: 588 U. S. ____ (2019)
Nos. 18–422, 18–726

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation.

The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights:

the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. 

In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. 

They promoted partisanship above respect for the popular will.

They encouraged a politics of polarization and dysfunction. 

If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts.

The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.

Those standards satisfy the majority’s own benchmarks.

They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other.
And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.

But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. 

In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. 

In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core.

After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved. 

So it is necessary to fill in the gaps. 

To recount exactly what politicians in North Carolina and Maryland did to entrench their parties in political office, whatever the electorate might think. 

And to elaborate on the constitutional injury those politicians wreaked, to our democratic system and to individuals’ rights. 

All that will help in considering whether courts confronting partisan gerrymandering claims are really so hamstrung—so unable to carry out their constitutional duties—as the majority thinks.

The plaintiffs here challenge two congressional districting plans—one adopted by Republicans in North Carolina and the other by Democrats in Maryland—as unconstitutional partisan gerrymanders. 

As I relate what happened in those two States, ask yourself:

Is this how American democracy is supposed to work?

Start with North Carolina. 

After the 2010 census, the North Carolina General Assembly, with Republican majorities in both its House and its Senate, enacted a new congressional districting plan. 

That plan governed the two next national elections. 

In 2012, Republican candidates won 9 of the State’s 13 seats in the U. S. House of Representatives, although they received only 49% of the statewide vote.

In 2014, Republican candidates increased their total to 10 of the 13 seats, this time based on 55% of the vote.

Soon afterward, a District Court struck down two districts in the plan as unconstitutional racial gerrymanders.
See Harris v. McCrory, 159 F. Supp. 3d 600 (MDNC 2016), aff ’d sub nom. Cooper v. Harris, 581 U. S. ___ (2017).

The General Assembly, with both chambers still controlled by Republicans, went back to the drawing board to craft the needed remedial state map. 

And here is how the process unfolded:

The Republican co-chairs of the Assembly’s redistricting committee, Rep. David Lewis and Sen. Robert Rucho, instructed Dr. Thomas Hofeller, a Republican districting specialist, to create a new map that would maintain the 10–3 composition of the State’s congressional delegation come what might.

Using sophisticated technological tools and precinct-level election results selected to predict voting behavior, Hofeller drew district lines to minimize Democrats’ voting strength and ensure the election of 10 Republican Congressmen. 

See Common Cause v. Rucho, 318 F. Supp. 3d 777, 805–806 (MDNC 2018).

Lewis then presented for the redistricting committee’s (retroactive) approval a list of the criteria Hofeller had employed—including one labeled “Partisan Advantage.” 

That criterion, endorsed by a party-line vote, stated that the committee would make all “reasonable efforts to construct districts” to “maintain the current [10–3] partisan makeup” of the State’s congressional delegation. Id., at 807.

Lewis explained the Partisan Advantage criterion to legislators as follows:

We are “draw[ing] the maps to give a partisan advantage to 10 Republicans and 3 Democrats because d
  • not believe it[’s] possible to draw a map with 11 Republicans and 2 Democrats.” Id., at 808 (internal quotation marks omitted).

The committee and the General Assembly later enacted, again on a party-line vote, the map Hofeller had drawn. See id., at 809.

Lewis announced:

“I think electing Republicans is better than electing Democrats. 

So I drew this map to help foster what I think is better for the country.” Ibid. (internal quotation marks omitted).

You might think that judgment best left to the American people.

But give Lewis credit for this much:

The map has worked just as he planned and predicted. 

In 2016, Republican congressional candidates won 10 of North Carolina’s 13 seats, with 53% of the statewide vote. 

Two years later, Republican candidates won 9 of 12 seats though they received only 50% of the vote.

(The 13th seat has not yet been filled because fraud tainted the initial election.)

Events in Maryland make for a similarly grisly tale.

For 50 years, Maryland’s 8-person congressional delegation typically consisted of 2 or 3 Republicans and 5 or 6 Democrats.

After the 2000 districting, for example, the First and Sixth Districts reliably elected Republicans, and the other districts as reliably elected Democrats.

See R. Cohen & J. Barnes, Almanac of American Politics 2016, p. 836 (2015). 

But in the 2010 districting cycle, the State’s Democratic leaders, who controlled the governorship and both houses of the General Assembly, decided to press their advantage.

Governor Martin O’Malley, who oversaw the process, decided (in his own later words) “to create a map that was more favorable for Democrats over the next ten years.” 

Because flipping the First District was geographically next-to-impossible, “a decision was made to go for the Sixth.” 

Benisek v. Lamone, 348 F. Supp. 3d 493, 502 (Md. 2018) (quoting O’Malley; emphasis deleted).

O’Malley appointed an advisory committee as the public face of his effort, while asking Congressman Steny Hoyer, a self-described “serial gerrymanderer,” to hire and direct a mapmaker.

Id., at 502. Hoyer retained Eric Hawkins, an analyst at a political consulting firm providing services to Democrats. See id., at 502–503.

Hawkins received only two instructions: to ensure that the new map produced 7 reliable Democratic seats, and to protect all Democratic incumbents. See id., at 503.

Using similar technologies and election data as Hofeller, Hawkins produced a map to those specifications. Although new census figures required removing only 10,000 residents from the Sixth District, Hawkins proposed a large-scale population transfer.

The map moved about 360,000 voters out of the district and another 350,000 in.

That swap decreased the number of registered Republicans in the district by over 66,000 and increased the number of registered Democrats by about 24,000, all to produce a safe Democratic district. See id., at 499, 501.

After the advisory committee adopted the map on a party-line vote, State Senate President Thomas Miller briefed the General Assembly’s Democratic caucuses about the new map’s aims. 

Miller told his colleagues that the map would give “Democrats a real opportunity to pick up a seventh seat in the delegation” and that “in the face of Republican gains in redistricting in other states[,] we have a serious obligation to create this opportunity.” Id., at 506 (internal quotation marks omitted).

The General Assembly adopted the plan on a partyline vote. See id., at 506.

Maryland’s Democrats proved no less successful than North Carolina’s Republicans in devising a voter-proof map.

In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. 

Yet in each of those elections, Democrats have won (you guessed it) 7 of 8 House seats—including the once-reliably-Republican Sixth District.
« Last Edit: June 27, 2019, 09:14:33 pm by Battle »

Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #4 on: June 27, 2019, 08:41:21 am »
Now back to the question I asked before: Is that how American democracy is supposed to work?  I have yet to meet the person who thinks so.

“Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.”

The Constitution begins:

“We the People of the United States.”

The Gettysburg Address (almost) ends:

“[G]overnment of the people, by the people, for the people.”

If there is a single idea that made our Nation (and that our Nation commended to the world), it is this one:

The people are sovereign.

The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people.” 4 Annals of Cong. 934 (1794).

Free and fair and periodic elections are the key to that vision.

The people get to choose their representatives.

And then they get to decide, at regular intervals, whether to keep them.

Madison again:

“[R]epublican liberty” demands “not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people.”

2 The Federalist No. 37, p. 4 (J. & A. McLean eds. 1788).

Members of the House of Representatives, in particular, are supposed to “recollect[ ] [that] dependence” every day.  Id., No. 57, at 155.

To retain an “intimate sympathy with the people,” they must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124, 155.

Election day—next year, and two years later, and two years after that—is what links the people to their representatives, and gives the people their sovereign power.

That day is the foundation of democratic governance. 

And partisan gerrymandering can make it meaningless.

At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” 

Vieth v. Jubelirer, 541 U. S. 267, 317 (2004) (Kennedy, J., concurring in judgment) (internal quotation marks omitted). 

By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. 

Just ask the people of North Carolina and Maryland. 

The “core principle of republican government,” this Court has recognized, is “that the voters should choose their representatives, not the other way around.”

Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 35) (internal quotation marks omitted).

Partisan gerrymandering turns it the other way around.

By that mechanism, politicians can cherry-pick voters to ensure their reelection.

And the power becomes, as Madison put it, “in the Government over the people.”  4 Annals of Cong. 934.
« Last Edit: June 27, 2019, 05:12:52 pm by Battle »

Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #5 on: June 27, 2019, 03:58:26 pm »
The majority disputes none of this. 

I think it important to underscore that fact:

The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. 

Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.”

Ante, at 30 (quoting Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).

And therefore what?

That recognition would seem to demand a response.

The majority offers two ideas that might qualify as such.

One is that the political process can deal with the problem—a proposition so dubious on its face that I feel secure in delaying my answer for some time. See ante, at 31–33; infra, at 29–31.

The other is that political gerrymanders have always been with us. See ante, at 8, 24. 

To its credit, the majority does not frame that point as an originalist constitutional argument.

After all (as the majority rightly notes), racial and residential gerrymanders were also once with us, but the Court has done something about that fact. See ante, at 10.1

The majority’s idea instead seems to be that if we have lived with partisan gerrymanders so long, we will survive.

That complacency has no cause.

Yes, partisan gerrymandering goes back to the Republic’s earliest days. 

(As does vociferous opposition to it.) 

But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past.

Old-time efforts, based on little more than guesses, sometimes led to so-called dummymanders— gerrymanders that went spectacularly wrong.

Not likely in today’s world.

Mapmakers now have access to more granular data about party preference and voting behavior than ever before.

County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wideranging information about even individual voters.

See Brief for Political Science Professors as Amici Curiae 20– 22.

Just as important, advancements in computing technology have enabled mapmakers to put that information to use with unprecedented efficiency and precision. See id., at 22–25.

While bygone mapmakers may have drafted three or four alternative districting plans, today’s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage (usually while still meeting traditional districting requirements).

The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. 

These are not your grandfather’s—let alone the Framers’—gerrymanders.

The proof is in the 2010 pudding.

That redistricting cycle produced some of the most extreme partisan gerrymanders in this country’s history.

I’ve already recounted the results from North Carolina and Maryland, and you’ll hear even more about those. See supra, at 4–6; infra, at 19–20.

But the voters in those States were not the only ones to fall prey to such districting perversions. 

Take Pennsylvania.

In the three congressional elections occurring under the State’s original districting plan (before the State Supreme Court struck it down), Democrats received between 45% and 51% of the statewide vote, but won only 5 of 18 House seats. 

See League of Women Voters v. Pennsylvania, ___ Pa. ___, ___, 178 A. 3d 737, 764 (2018). 

Or go next door to Ohio. 

There, in four congressional elections, Democrats tallied between 39% and 47% of the statewide vote, but never won more than 4 of 16 House seats. 

See Ohio A. Philip Randolph Inst. v. Householder, 373 F. Supp. 3d 978, 1074 (SD Ohio 2019). 

(Nor is there any reason to think that the results in those States stemmed from political geography or non-partisan districting criteria, rather than from partisan manipulation. See infra, at 15, 31.)

And gerrymanders will only get worse (or depending on your perspective, better) as time goes on—as data becomes ever more fine-grained and data analysis techniques continue to improve.

What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning.

And someplace along this road, “we the people” become sovereign no longer.


Partisan gerrymandering of the kind before us not only subverts democracy (as if that weren’t bad enough). 

It violates individuals’ constitutional rights as well.

That statement is not the lonesome cry of a dissenting Justice.

This Court has recognized extreme partisan gerrymandering as such a violation for many years.

Partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others.

A mapmaker draws district lines to “pack” and “crack” voters likely to support the disfavored party.

See generally Gill v. Whitford, 585 U. S. ___, ___–___ (2018) (slip op., at 14–16).

He packs supermajorities of those voters into a relatively few districts, in numbers far greater than needed for their preferred candidates to prevail.

Then he cracks the rest across many more districts, spreading them so thin that their candidates will not be able to win.

Whether the person is packed or cracked, his vote carries less weight—has less consequence—than it would under a neutrally drawn (non-partisan) map.  See id., at ___ (KAGAN, J., concurring) (slip op., at 4). 

In short, the mapmaker has made some votes count for less, because they are likely to go for the other party.

That practice implicates the Fourteenth Amendment’s Equal Protection Clause.

The Fourteenth Amendment, we long ago recognized, “guarantees the opportunity for equal participation by all voters in the election” of legislators. Reynolds v. Sims, 377 U. S. 533, 566 (1964). 

And that opportunity “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Id., at 555.

Based on that principle, this Court in its one-personone-vote decisions prohibited creating districts with significantly different populations.

A State could not, we explained, thus “dilut[e] the weight of votes because of place of residence.”  Id., at 566.

The constitutional injury in a partisan gerrymandering case is much the same, except that the dilution is based on party affiliation. 

In such a case, too, the districters have set out to reduce the weight of certain citizens’ votes, and thereby deprive them of their capacity to “full[y] and effective[ly] participat[e] in the political process[].”  Id., at 565.

As Justice Kennedy (in a controlling opinion) once hypothesized:

If districters declared that they were drawing a map “so as most to burden [the votes of] Party X’s” supporters, it would violate the Equal Protection Clause.  Vieth, 541 U. S., at 312. 

For (in the language of the one-person-one-vote decisions) it would infringe those voters’ rights to “equal [electoral] participation.”  Reynolds, 377 U. S., at 566; see Gray v. Sanders, 372 U. S. 368, 379–380 (1963) (“The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications”).

And partisan gerrymandering implicates the First Amendment too.

That Amendment gives its greatest protection to political beliefs, speech, and association. 

Yet partisan gerrymanders subject certain voters to “disfavored treatment”—again, counting their votes for less— precisely because of “their voting history [and] their expression of political views.”  Vieth, 541 U. S., at 314 (opinion of Kennedy, J.).

And added to that strictly personal harm is an associational one. 

Representative democracy is “unimaginable without the ability of citizens to band together in [support of] candidates who espouse their political views.” California Democratic Party v. Jones, 530 U. S. 567, 574 (2000). 

By diluting the votes of certain citizens, the State frustrates their efforts to translate those affiliations into political effectiveness. 

See Gill, 585 U. S., at ___ (KAGAN, J., concurring) (slip op., at 9) (“Members of the disfavored party[,] deprived of their natural political strength[,] may face difficulties fundraising, registering voters, [and] eventually accomplishing their policy objectives”).

In both those ways, partisan gerrymanders of the kind we confront here undermine the protections of “democracy embodied in the First Amendment.” Elrod v. Burns, 427 U. S. 347, 357 (1976) (internal quotation marks omitted).
« Last Edit: June 27, 2019, 09:20:34 pm by Battle »

Offline Battle

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #6 on: June 27, 2019, 04:07:37 pm »
Though different Justices have described the constitutional harm in diverse ways, nearly all have agreed on this much:

Extreme partisan gerrymandering (as happened in North Carolina and Maryland) violates the Constitution. See, e.g., Vieth, 541 U. S., at 293 (plurality opinion) (“[A]n excessive injection of politics [in districting] is unlawful” (emphasis deleted)); id., at 316 (opinion of Kennedy, J.) (“[P]artisan gerrymandering that disfavors one party is [im]permissible”); id., at 362 (BREYER, J., dissenting) (Gerrymandering causing political “entrenchment” is a “violat[ion of] the Constitution’s Equal Protection Clause”); Davis v. Bandemer, 478 U. S. 109, 132 (1986) (plurality opinion) (“nconstitutional discrimination” occurs “when the electoral system is arranged in a manner that will consistently degrade [a voter’s] influence on the political process”); id., at 165 (Powell, J., concurring)
(“Unconstitutional gerrymandering” occurs when “the boundaries of the voting districts have been distorted deliberately” to deprive voters of “an equal opportunity to participate in the State’s legislative processes”). 

Once again, the majority never disagrees; it appears to accept the “principle that each person must have an equal say in the election of representatives.” 

Ante, at 20.

And indeed, without this settled and shared understanding that cases like these inflict constitutional injury, the question of whether there are judicially manageable standards for resolving them would never come up.

So the only way to understand the majority’s opinion is as follows:

In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy.

For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

The majority gives two reasons for thinking that the adjudication of partisan gerrymandering claims is beyond judicial capabilities. 

First and foremost, the majority says, it cannot find a neutral baseline—one not based on contestable notions of political fairness—from which to measure injury.  See ante, at 15–19. 

According to the majority, “[p]artisan gerrymandering claims invariably sound in a desire for proportional representation.” Ante, at 16.

But the Constitution does not mandate proportional representation.

So, the majority contends, resolving those claims “inevitably” would require courts to decide what is “fair” in the context of districting.  Ante, at 17. 

They would have “to make their own political judgment about how much representation particular political parties deserve” and “to rearrange the challenged districts to achieve that end.” Ibid. (emphasis in original). 

And second, the majority argues that even after establishing a baseline, a court would have no way to answer “the determinative question:

‘How much is too much?’”  Ante, at 19.

No “discernible and manageable” standard is available, the majority claims—and so courts could willy-nilly become embroiled in fixing every districting plan.  Ante, at 20; see ante, at 15–16.

I’ll give the majority this one—and important—thing:

It identifies some dangers everyone should want to avoid.

Judges should not be apportioning political power based on their own vision of electoral fairness, whether proportional representation or any other. 

And judges should not be striking down maps left, right, and center, on the view that every smidgen of politics is a smidgen too much.

Respect for state legislative processes—and restraint in the exercise of judicial authority—counsels intervention in only egregious cases But in throwing up its hands, the majority misses something under its nose:

What it says can’t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims (striking down both Democratic and Republican districting plans in the process).

See also Ohio A. Philip Randolph Inst., 373 F. Supp. 3d 978; League of Women Voters of Michigan v. Benson, 373 F. Supp. 3d 867 (ED Mich. 2019). 

And that standard does what the majority says is impossible. 

The standard does not use any judge-made conception of electoral fairness—either proportional representation or any other; instead, it takes as its baseline a State’s own criteria of fairness, apart from partisan gain. 

And by requiring plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.

Below, I first explain the framework courts have developed, and describe its application in these two cases.

Doing so reveals in even starker detail than before how much these partisan gerrymanders deviated from democratic norms. 

As I lay out the lower courts’ analyses, I consider two specific criticisms the majority levels—each of which reveals a saddening nonchalance about the threat such districting poses to self-governance.

All of that lays the groundwork for then assessing the majority’s more general view, described above, that judicial policing in this area cannot be either neutral or restrained. 

The lower courts’ reasoning, as I’ll show, proves the opposite.
« Last Edit: June 27, 2019, 05:13:45 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #7 on: June 27, 2019, 04:29:43 pm »
Start with the standard the lower courts used. 

The majority disaggregates the opinions below, distinguishing the one from the other and then chopping up each into “a number of ‘tests.’”  Ante, at 22; see ante, at 22–30. 

But in doing so, it fails to convey the decisions’ most significant— and common—features.

Both courts focused on the harm of vote dilution, see supra, at 11, though the North Carolina court mostly grounded its analysis in the Fourteenth Amendment and the Maryland court in the First. 

And both courts (like others around the country) used basically the same three-part test to decide whether the plaintiffs had made out a vote dilution claim. 

As many legal standards do, that test has three parts:

(1) intent;

(2) effects;

and (3) causation. 

First, the plaintiffs challenging a districting plan must prove that state officials’ “predominant purpose” in drawing a district’s lines was to “entrench [their party] in power” by diluting the votes of citizens favoring its rival.  Rucho, 318 F. Supp. 3d, at 864 (quoting Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).

Second, the plaintiffs must establish that the lines drawn in fact have the intended effect by “substantially” diluting their votes. Lamone, 348 F. Supp. 3d, at 498. 

And third, if the plaintiffs make those showings, the State must come up with a legitimate, non-partisan justification to save its map. See Rucho, 318 F. Supp. 3d, at 867.2

If you are a lawyer, you know that this test looks utterly ordinary.

It is the sort of thing courts work with every day.

Turn now to the test’s application. 

First, did the North Carolina and Maryland districters have the predominant purpose of entrenching their own party in power? 

Here, the two District Courts catalogued the overwhelming direct evidence that they did. 

To remind you of some highlights, see supra, at 4–6:

North Carolina’s redistricting committee used “Partisan Advantage” as an official criterion for drawing district lines. 

And from the first to the last, that committee’s chair (along with his mapmaker) acted to ensure a 10–3 partisan split, whatever the statewide vote, because he thought that “electing Republicans is better than electing Democrats.” 

For their part, Maryland’s Democrats—the Governor, senior Congressman, and State Senate President alike—openly admitted to a single driving purpose:

flip the Sixth District from Republican to Democratic.

They did not blanch from moving some 700,000 voters into new districts (when one person-one-vote rules required relocating just 10,000) for that reason and that reason alone.

The majority’s response to the District Courts’ purpose analysis is discomfiting. 

The majority does not contest the lower courts’ findings; how could it? 

Instead, the majority says that state officials’ intent to entrench their party in power is perfectly “permissible,” even when it is the predominant factor in drawing district lines.  Ante, at 23.

But that is wrong. 

True enough, that the intent to inject “political considerations” into districting may not raise any constitutional concerns.

In Gaffney v. Cummings, 412 U. S. 735 (1973), for example, we thought it nonproblematic when state officials used political data to ensure rough proportional representation between the two parties.

And true enough that even the naked purpose to gain partisan advantage may not rise to the level of constitutional notice when it is not the driving force in mapmaking or when the intended gain is slight.  See Vieth, 541 U. S., at 286 (plurality opinion).

But when political actors have a specific and predominant intent to entrench themselves in power by manipulating district lines, that goes too far.

Consider again Justice Kennedy’s hypothetical of mapmakers who set out to maximally burden (i.e., make count for as little as possible) the votes going to a rival party. See supra, at 12.

Does the majority really think that goal is permissible?

But why even bother with hypotheticals?

Just consider the purposes here. 

It cannot be permissible and thus irrelevant, as the majority claims, that state officials have as their purpose the kind of grotesquely gerrymandered map that, according to all this Court has ever said, violates the Constitution.  See supra, at 13.

On to the second step of the analysis, where the plaintiffs must prove that the districting plan substantially dilutes their votes. 

The majority fails to discuss most of the evidence the District Courts relied on to find that the plaintiffs had done so. See ante, at 23–24. 

But that evidence—particularly from North Carolina—is the key to understanding both the problem these cases present and the solution to it they offer. 

The evidence reveals just how bad the two gerrymanders were (in case you had any doubts).

And it shows how the same technologies and data that today facilitate extreme partisan gerrymanders also enable courts to discover them, by exposing just how much they dilute votes.  See Vieth, 541 U. S., at 312–313 (opinion of Kennedy, J.) (predicting that development).

Consider the sort of evidence used in North Carolina first.

There, the plaintiffs demonstrated the districting plan’s effects mostly by relying on what might be called the “extreme outlier approach.” 

(Here’s a spoiler: the State’s plan was one.)

The approach—which also has recently been used in Michigan and Ohio litigation— begins by using advanced computing technology to randomly generate a large collection of districting plans that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain.

For each of those maps, the method then uses actual precinct-level votes from past elections to determine a partisan outcome (i.e., the number of Democratic and Republican seats that map produces).

Suppose we now have 1,000 maps, each with a partisan outcome attached to it.

We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other.

We can then find the median outcome—that is, the outcome smack dab in the center—in a world with no partisan manipulation.

And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails?

The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution. See generally Brief for Eric S. Lander as Amicus Curiae 7–22.

Using that approach, the North Carolina plaintiffs offered a boatload of alternative districting plans—all showing that the State’s map was an out-out-out-outlier.

One expert produced 3,000 maps, adhering in the way described above to the districting criteria that the North Carolina redistricting committee had used, other than partisan advantage. 

To calculate the partisan outcome of those maps, the expert also used the same election data (a composite of seven elections) that Hofeller had employed when devising the North Carolina plan in the first instance.

The results were, shall we say, striking. 

Every single one of the 3,000 maps would have produced at least one more Democratic House Member than the State’s actual map, and 77% would have elected three or four more. See Rucho, 318 F. Supp. 3d, at 875–876, 894; App. 276.

A second expert obtained essentially the same results with maps conforming to more generic districting criteria (e.g., compactness and contiguity of districts).

Over 99% of that expert’s 24,518 simulations would have led to the election of at least one more Democrat, and over 70% would have led to two or three more. 

See Rucho, 318 F. Supp. 3d, at 893–894.  Based on those and other findings, the District Court determined that the North Carolina plan substantially dilutes the plaintiffs’ votes.4 Because the Maryland gerrymander involved just one district, the evidence in that case was far simpler—but no less powerful for that.

You’ve heard some of the numbers before. See supra, at 6.

The 2010 census required only a minimal change in the Sixth District’s population—the subtraction of about 10,000 residents from more than 700,000. But instead of making a correspondingly minimal adjustment, Democratic officials reconfigured the entire district.

They moved 360,000 residents out and another 350,000 in, while splitting some counties for the first time in almost two centuries. 

The upshot was a district with 66,000 fewer Republican voters and 24,000 more Democratic ones. 

In the old Sixth, 47% of registered voters were Republicans and only 36% Democrats. 

But in the new Sixth, 44% of registered voters were Democrats and only 33% Republicans. 

That reversal of the district’s partisan composition translated into four consecutive Democratic victories, including in a wave election year for Republicans (2014).

In what was once a party stronghold, Republicans now have little or no chance to elect their preferred candidate. 

The District Court thus found that the gerrymandered Maryland map substantially dilutes Republicans’ votes. See Lamone, 348 F. Supp. 3d, at 519– 520.

The majority claims all these findings are mere “prognostications” about the future, in which no one “can have any confidence.”

Ante, at 23 (internal quotation marks omitted).

But the courts below did not gaze into crystal balls, as the majority tries to suggest.

Their findings about these gerrymanders’ effects on voters—both in the past and predictably in the future—were evidence-based, data-based, statistics-based.

Knowledge-based, one might say.

The courts did what anyone would want a decisionmaker to do when so much hangs in the balance.

They looked hard at the facts, and they went where the facts led them.

They availed themselves of all the information that mapmakers (like Hofeller and Hawkins) and politicians (like Lewis and O’Malley) work so hard to amass and then use to make every districting decision.

They refused to content themselves with unsupported and out-of-date musings about the unpredictability of the American voter.

See ante, at 24–25; but see Brief for Political Science Professors as Amici Curiae 14–20 (citing chapter and verse to the contrary). 

They did not bet America’s future—as today the majority does—on the idea that maps constructed with so much expertise and care to make electoral outcomes impervious to voting would somehow or other come apart. 

They looked at the evidence—at the facts about how these districts operated— and they could reach only one conclusion. 

By substantially diluting the votes of citizens favoring their rivals, the politicians of one party had succeeded in entrenching themselves in office. 

They had beat democracy.
...and getting away with sh*t!

The majority’s broadest claim, as I’ve noted, is that this is a price we must pay because judicial oversight of partisan gerrymandering cannot be “politically neutral” or “manageable.” Ante, at 19; see supra, at 14.

Courts, the majority argues, will have to choose among contested notions of electoral fairness.

(Should they take as the ideal mode of districting proportional representation, many competitive seats, adherence to traditional districting criteria, or so forth?)  See ante, at 16–19.

And even once courts have chosen, the majority continues, they will have to decide “[h]ow much is too much?”—that is, how much deviation from the chosen “touchstone” to allow? Ante, at 19–20.

In answering that question, the majority surmises, they will likely go far too far. See ante, at 15.

So the whole thing is impossible, the majority concludes.

To prove its point, the majority throws a bevy of question marks on the page. (I count nine in just two paragraphs. See ante, at 19–20.)

But it never tries to analyze the serious question presented here—whether the kind of standard developed below falls prey to those objections, or instead allows for neutral and manageable oversight. 

The answer, as you’ve already heard enough to know, is the latter.

That kind of oversight is not only possible; it’s been done.
« Last Edit: July 03, 2019, 10:28:58 am by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #8 on: June 27, 2019, 04:42:16 pm »
Consider neutrality first. 

Contrary to the majority’s suggestion, the District Courts did not have to—and in fact did not—choose among competing visions of electoral fairness.

That is because they did not try to compare the State’s actual map to an “ideally fair” one (whether based on proportional representation or some other criterion).

Instead, they looked at the difference between what the State did and what the State would have done if politicians hadn’t been intent on partisan gain.

Or put differently, the comparator (or baseline or touchstone) is the result not of a judge’s philosophizing but of the State’s own characteristics and judgments. 

The effects evidence in these cases accepted as a given the State’s physical geography (e.g., where does the Chesapeake run?) and political geography (e.g., where do the Democrats live on top of each other?).

So the courts did not, in the majority’s words, try to “counteract ‘natural’ gerrymandering caused, for example, by the urban concentration of one party.” Ante, at 19. 

Still more, the courts’ analyses used the State’s own criteria for electoral fairness—except for naked partisan gain. 

Under their approach, in other words, the State selected its own fairness baseline in the form of its other districting criteria. 

All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office.

The North Carolina litigation well illustrates the point.

The thousands of randomly generated maps I’ve mentioned formed the core of the plaintiffs’ case that the North Carolina plan was an “extreme[] outlier.”  Rucho, 318 F. Supp. 3d, at 852 (internal quotation marks omitted); see supra, at 18–20. 

Those maps took the State’s political landscape as a given.

In North Carolina, for example, Democratic voters are highly concentrated in cities. 

That fact was built into all the maps; it became part of the baseline. See Rucho, 318 F. Supp. 3d, at 896–897. 

On top of that, the maps took the State’s legal landscape as a given.

They incorporated the State’s districting priorities, excluding partisanship.

So in North Carolina, for example, all the maps adhered to the traditional criteria of contiguity and compactness.  See supra, at 19–20. 

But the comparator maps in another State would have incorporated different objectives—say, the emphasis Arizona places on competitive districts or the requirement Iowa imposes that counties remain whole.

See Brief for Mathematicians et al. as Amici Curiae 19–20. 

The point is that the assemblage of maps, reflecting the characteristics and judgments of the State itself, creates a neutral baseline from which to assess whether partisanship has run amok.

Extreme outlier as to what?

As to the other maps the State could have produced given its unique political geography and its chosen districting criteria.

Not as to the maps a judge, with his own view of electoral fairness, could have dreamed up.

The Maryland court lacked North Carolina’s fancy evidence, but analyzed the gerrymander’s effects in much the same way—not as against an ideal goal, but as against an ex ante baseline. 

To see the difference, shift gears for a moment and compare Maryland and Massachusetts—both of which (aside from Maryland’s partisan gerrymander) use traditional districting criteria. 

In those two States alike, Republicans receive about 35% of the vote in statewide elections. See Almanac of American Politics 2016, at 836, 880.

But the political geography of the States differs. 

In Massachusetts, the Republican vote is spread evenly across the State; because that is so, districting plans (using traditional criteria of contiguity and compactness) consistently lead to an all-Democratic congressional delegation. 

By contrast, in Maryland, Republicans are clumped—into the Eastern Shore (the First District) and the Northwest Corner (the old Sixth). 

Claims of partisan gerrymandering in those two States could come out the same way if judges, à la the majority, used their own visions of fairness to police districting plans; a judge in each State could then insist, in line with proportional representation, that 35% of the vote share entitles citizens to around that much of the delegation.

But those suits would not come out the same if courts instead asked:

What would have happened, given the State’s natural political geography and chosen districting criteria, had officials not indulged in partisan manipulation? 

And that is what the District Court in Maryland inquired into. 

The court did not strike down the new Sixth District because a judicial ideal of proportional representation commanded another Republican seat.

It invalidated that district because the quest for partisan gain made the State override its own political geography and districting criteria.

The majority’s sole response misses the point. 

According to the majority, “it does not make sense to use” a State’s own (non-partisan) districting criteria as the baseline from which to measure partisan gerrymandering because those criteria “will vary from State to State and year to year.”  Ante, at 27.

But that is a virtue, not a vice—a feature, not a bug.

Using the criteria the State itself has chosen at the relevant time prevents any judicial predilections from affecting the analysis—exactly what the majority claims it wants. 

At the same time, using those criteria enables a court to measure just what it should:

the extent to which the pursuit of partisan advantage—by these legislators at this moment—has distorted the State’s districting decisions. 

Sure, different non-partisan criteria could result, as the majority notes, in different partisan distributions to serve as the baseline. Ante, at 28.

But that in itself raises no issue: Everyone agrees that state officials using non-partisan criteria (e.g., must counties be kept together? should districts be compact?) have wide latitude in districting. 

The problem arises only when legislators or mapmakers substantially deviate from the baseline distribution by manipulating district lines for partisan gain.

So once again, the majority’s analysis falters because it equates the demand to eliminate partisan gerrymandering with a demand for a single partisan distribution—the one reflecting proportional representation. See ante, at 16–17. 

But those two demands are different, and only the former is at issue here.

So much, then, for the impossibility of neutrality.

The majority’s sole response misses the point. 

According to the majority, “it does not make sense to use” a State’s own (non-partisan) districting criteria as the baseline from which to measure partisan gerrymandering because those criteria “will vary from State to State and year to year.”  Ante, at 27.

But that is a virtue, not a vice—a feature, not a bug.

Using the criteria the State itself has chosen at the relevant time prevents any judicial predilections from affecting the analysis—exactly what the majority claims it wants. 

At the same time, using those criteria enables a court to measure just what it should:

the extent to which the pursuit of partisan advantage—by these legislators at this moment—has distorted the State’s districting decisions. 

Sure, different non-partisan criteria could result, as the majority notes, in different partisan distributions to serve as the baseline. Ante, at 28.

But that in itself raises no issue:

Everyone agrees that state officials using non-partisan criteria (e.g., must counties be kept together? should districts be compact?) have wide latitude in districting. 

The problem arises only when legislators or mapmakers substantially deviate from the baseline distribution by manipulating district lines for partisan gain.

So once again, the majority’s analysis falters because it equates the demand to eliminate partisan gerrymandering with a demand for a single partisan distribution—the one reflecting proportional representation. See ante, at 16–17. 

But those two demands are different, and only the former is at issue here.

The majority’s “how much is too much” critique fares no better than its neutrality argument. 

How about the following for a first-cut answer:

This much is too much.
« Last Edit: June 27, 2019, 05:14:34 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #9 on: June 27, 2019, 04:46:46 pm »
By any measure, a map that produces a greater partisan skew than any of 3,000 randomly generated maps (all with the State’s political geography and districting criteria built in) reflects “too much” partisanship. 

Think about what I just said:

The absolute worst of 3,001 possible maps.

The only one that could produce a 10–3 partisan split even as Republicans got a bare majority of the statewide vote.

And again:

How much is too much?

This much is too much:

A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of a district from 47% Republicans and 36% Democrats to 33% Republicans and 42% Democrats. 

A map that in 2011 was responsible for the largest partisan swing of a congressional district in the country. See Lamone, 348 F. Supp. 3d, at 519. 

Even the majority acknowledges that “[t]hese cases involve blatant examples of partisanship driving districting decisions.” Ante, at 27.

If the majority had done nothing else, it could have set the line here.

How much is too much? 

At the least, any gerrymanders as bad as these.

And if the majority thought that approach too casespecific, see ante, at 28, it could have used the lower courts’ general standard—focusing on “predominant” purpose and “substantial” effects—without fear of indeterminacy. 

I do not take even the majority to claim that courts are incapable of investigating whether legislators mainly intended to seek partisan advantage. See ante, at 19–20 (focusing on the difficulty of measuring effects).

That is for good reason. 

Although purpose inquiries carry certain hazards (which courts must attend to), they are a common form of analysis in constitutional cases.  See, e.g., Miller v. Johnson, 515 U. S. 900, 916 (1995); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993); Washington v. Davis, 426 U. S. 229, 239 (1976).

Those inquiries would be no harder here than in other contexts.

Nor is there any reason to doubt, as the majority does, the competence of courts to determine whether a district map “substantially” dilutes the votes of a rival party’s supporters from the everything-but-partisanship baseline described above.

(Most of the majority’s difficulties here really come from its idea that ideal visions set the baseline. But that is double-counting—and, as already shown, wrong to boot.) 

As this Court recently noted, “the law is full of instances” where a judge’s decision rests on “estimating rightly . . . some matter of degree”—including the “substantial[ity]” of risk or harm.  Johnson v. United States, 576 U. S. ___, ___ (2015) (slip op., at 12) (internal quotation marks omitted); see, e.g., Ohio v. American Express Co., 585 U. S. ___, ___ (2018) (slip op., at 9) (determining “substantial anticompetitive effect
« Last Edit: June 27, 2019, 05:14:56 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #10 on: June 27, 2019, 04:51:33 pm »
when applying the Sherman Act); United States v. Davis, ante, at 7–10 (KAVANAUGH, J., dissenting) (cataloging countless statutes requiring a “substantial” risk of harm).

The majority is wrong to think that these laws typically (let alone uniformly) further “confine[] and guide[]” judicial decisionmaking.  Ante, at 28. 

They do not, either in themselves or through “statutory context.”  Ibid.

To the extent additional guidance has developed over the years (as under the Sherman Act), courts themselves have been its author—as they could be in this context too. 

And contrary to the majority’s suggestion, see ibid., courts all the time make judgments about the substantiality of harm without reducing them to particular percentages. 

If courts are no longer competent to do so, they will have to relinquish, well, substantial portions of their docket.

And the combined inquiry used in these cases set the bar high, so that courts could intervene in the worst partisan gerrymanders, but no others.

Or to say the same thing, so that courts could intervene in the kind of extreme gerrymanders that nearly every Justice for decades has thought to violate the Constitution.  See supra, at 13.

Illicit purpose was simple to show here only because politicians and mapmakers thought their actions could not be attacked in court.  See Rucho, 318 F. Supp. 3d, at 808 (quoting Lewis’s statements to that effect). 

They therefore felt free to openly proclaim their intent to entrench their party in office.  See supra, at 4–6. 

But if the Court today had declared that behavior justiciable, such smoking guns would all but disappear.
Even assuming some officials continued to try implementing extreme partisan gerrymanders, 5 they would not brag about their efforts. 

So plaintiffs would have to prove the intent to entrench through circumstantial evidence—essentially showing that no other explanation (no geographic feature or nonpartisan districting objective) could explain the districting plan’s vote dilutive effects. 

And that would be impossible unless those effects were even more than substantial— unless mapmakers had packed and cracked with abandon in unprecedented ways. 

As again, they did here. 

That the two courts below found constitutional violations does not mean their tests were unrigorous; it means that the conduct they confronted was constitutionally appalling—by even the strictest measure, inordinately partisan.

The majority, in the end, fails to understand both the plaintiffs’ claims and the decisions below. 

Everything in today’s opinion assumes that these cases grew out of a “desire for proportional representation” or, more generally phrased, a “fair share of political power.” Ante, at 16, 21.

And everything in it assumes that the courts below had to (and did) decide what that fair share would be.

But that is not so.

The plaintiffs objected to one specific practice—the extreme manipulation of district lines for partisan gain.

Elimination of that practice could have led to proportional representation.

Or it could have led to nothing close. What was left after the practice’s removal could have been fair, or could have been unfair, by any number of measures.

That was not the crux of this suit.

The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. 

And the courts, using neutral and manageable—and eminently legal—standards, provided that (and only that) relief.

This Court should have cheered, not overturned, that restoration of the people’s power to vote.
« Last Edit: June 27, 2019, 05:15:15 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #11 on: June 27, 2019, 05:10:04 pm »
This Court has long understood that it has a special responsibility to remedy violations of constitutional rights resulting from politicians’ districting decisions. 

Over 50 years ago, we committed to providing judicial review in that sphere, recognizing as we established the one-personone-vote rule that “our oath and our office require no less.” Reynolds, 377 U. S., at 566. 

Of course, our oath and our office require us to vindicate all constitutional rights. 

But the need for judicial review is at its most urgent in cases like these. 

“For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.” Gill, 585 U. S., at ___ (KAGAN, J., concurring) (slip op., at 14).

Those harms arise because politicians want to stay in office. 

No one can look to them for effective relief.

The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders.

“Dozens of [those] bills have been introduced,” the majority says.  Ante, at 33. 

One was “introduced in 2005 and has been reintroduced in every Congress since.”  Ibid.

And might be reintroduced until the end of time. 

Because what all these bills have in common is that they are not laws.

The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.

And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

No worries, the majority says; it has another idea. 

The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other nonpartisan actors.  See ante, at 32.

Some Members of the majority, of course, once thought such initiatives unconstitutional. See Arizona State Legislature, 576 U. S., at ___ (ROBERTS, C. J., dissenting) (slip op., at 1). 

But put that aside.

Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). 

And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail.

Look at Missouri. 

There, the majority touts a voterapproved proposal to turn districting over to a state demographer. See ante, at 32.

But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change.  See Mo. H. J. Res. 48, 100th Gen. Assembly, 1st Reg. Sess. (2019).

I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.

The majority’s most perplexing “solution” is to look to state courts.  Ante, at 30. 

  • ur conclusion,” the majority states, does not “condemn complaints about districting to echo into a void”:

Just a few years back, “the Supreme Court of Florida struck down that State’s congressional districting plan as a violation” of the State Constitution.

Ante, at 31; see League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). 

And indeed, the majority might have added, the Supreme Court of Pennsylvania last year did the same thing.  See League of Women Voters, ___ Pa., at ___, 178 A. 3d, at 818. 

But what do those courts know that this Court does not?

If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?

We could have, and we should have. 

The gerrymanders here—and they are typical of many—violated the constitutional rights of many hundreds of thousands of American citizens.

Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. 

Their votes counted for far less than they should have because of their partisan affiliation. 

When faced with such constitutional wrongs, courts must intervene:

“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). 

That is what the courts below did.

Their decisions are worth a read.

They (and others that have recently remedied similar violations) are detailed, thorough, painstaking.

They evaluated with immense care the factual evidence and legal arguments the parties presented.

They used neutral and manageable and strict standards.

They had not a shred of politics about them.

Contra the majority, see ante, at 34, this was law.

That is not to deny, of course, that these cases have great political consequence.

They do.

Among the amicus briefs here is one from a bipartisan group of current and former Members of the House of Representatives.

They describe all the ways partisan gerrymandering harms our political system—what they call “a cascade of negative results.” Brief as Amicus Curiae 5.

These artificially drawn districts shift influence from swing voters to partybase voters who participate in primaries; make bipartisanship and pragmatic compromise politically difficult or impossible; and drive voters away from an ever more dysfunctional political process.  See id., at 5–6.

Last year, we heard much the same from current and former state legislators. 

In their view, partisan gerrymandering has “sounded the death-knell of bipartisanship,” creating a legislative environment that is “toxic” and “tribal.” 

Brief as Amicus Curiae in Gill v. Whitford, O. T. 2016, No. 16– 1161, pp. 6, 25. 

Gerrymandering, in short, helps create the polarized political system so many Americans loathe.

And gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense. See supra, at 7–8. 

In our government, “all political power flows from the people.” Arizona State Legislature, 576 U. S., at ___ (slip op., at 35). 

And that means, as Alexander Hamilton once said, “that the people should choose whom they please to govern them.” 2 Debates on the Constitution 257 (J. Elliot ed. 1891).

But in Maryland and North Carolina they cannot do so. 

In Maryland, election in and election out, there are 7 Democrats and 1 Republican in the congressional delegation. 

In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats.

Is it conceivable that someday voters will be able to break out of that prefabricated box?


But everything possible has been done to make that hard.

To create a world in which power does not flow from the people because they do not choose their governors.

Of all times to abandon the Court’s duty to declare the law, this was not the one.

The practices challenged in these cases imperil our system of government. 

Part of the Court’s role in that system is to defend its foundations.

None is more important than free and fair elections. 

With respect but deep sadness, I dissent.
« Last Edit: June 27, 2019, 05:15:42 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #12 on: July 05, 2019, 09:08:13 am »
Wednesday, 12th June 2019
Our Turn: Redistricting reform gives power back to the people
by Eric Holder, Jr. & Arnold Schwarzenegger

Although we are a proud Republican and a proud Democrat, we are teaming up to end the practice of partisan gerrymandering because this fight transcends ideology and party affiliation.

Over the past couple of years, we have both traveled across America to fight for reforms and raise the American people’s consciousness about how gerrymandering impacts their day-to-day lives.

While we have both gotten our share of funny looks and questions from people wondering why we are focusing our time on what may seem like an obscure issue, more and more Americans are supporting real redistricting reforms that end gerrymandering.

Every 10 years, following the census, states have to draw new districts for representatives in state government and the U.S. House of Representatives.

Partisan gerrymandering is the tool politicians use to manipulate the lines of their district in a way that benefits them – they create a system where politicians pick their voters instead of allowing voters to choose their representatives.

While it’s true that gerrymandering has been used by politicians of both parties in the United States for 200 years, the practice is now worse than ever.

How electoral lines are drawn may seem wonky or something only politicians and political scientists care about, but it has an enormous influence on our political system.

Republicans, Democrats and people with no party affiliation are tired of our broken political system and gerrymandering only makes the situation worse.

When politicians represent a gerrymandered district, they are more concerned with the special interests and the extremes of their party than finding compromises that further the interests of the people.
Gerrymandering is part of the reason why our politics are so polarized and our political leaders keep debating critical issues like rebuilding our infrastructure or reforming our immigration system, but nothing ever gets done.

Right now, New Hampshire has an opportunity to fix this broken system.

A bipartisan group in the New Hampshire Legislature has put forward a proposal to create an independent redistricting commission to draw the electoral maps for the New Hampshire House and Senate, county commissions, Executive Council and congressional districts.

The reform prohibits partisan gerrymandering, creates protections for ethnic and racial minorities and ensures that communities of interest are considered in how the lines are drawn.

Importantly, this reform requires the commission to provide the public with any proposed maps and the data used to draw them, creating an open and transparent process to ensure the people have a say in how the new maps are drawn.

We commend the legislators from both parties who have worked on this compromise.

They have put forward a serious reform proposal that will be good for the people of New Hampshire.

Other states, like California and Arizona, fought hard for the commission model, and have shown that this system works.

Both states had independent commissions in place for redistricting in 2011 that led to fair, competitive districts – and California voters have shown their appreciation, with their approval ratings of their fairly elected legislators skyrocketing since reform.

Their example has helped spur a movement for fair maps that is only growing stronger.
In 2018, reform proposals that were on the ballot in Colorado, Michigan, Missouri, Ohio and Utah received strong bipartisan support from the voters.

Our effort to end gerrymandering is really about ending a system that benefits politicians at the expense of the interests of the people.

Independent, nonpartisan redistricting commissions help make politicians more responsive to their constituents and more likely to seek common-sense solutions that the majority of Americans support.

This reform in New Hampshire – and others like it around the country – can lead to the representative democracy that our Founders envisioned when they started our Constitution with three key words:

“We the People.”

With the census in 2020 and the next round of redistricting in 2021, now is the time for action.

We urge members of both parties to send this bill to Gov. Chris Sununu and hope he signs it without delay.

New Hampshire can lead the next wave of reforms in the states to ensure fair and representative districts are in place for the next decade.

It’s time for more Americans to take the power of drawing the district lines away from the politicians and give it back to the people, where it belongs.

(Eric H. Holder Jr., a Democrat, served as the 82nd attorney general of the United States. Arnold Schwarzenegger, a Republican, is the former governor of California.)

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« Last Edit: July 05, 2019, 08:12:35 pm by Battle »

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #13 on: July 05, 2019, 11:04:23 am »
Wednesday, 3rd July 2019
The Supreme Court’s contorted reasoning in a gerrymandering case leaves a fundamental flaw in our constitutional democracy without hope of a judicial remedy
by Charles Fried

The usual form for a justice who disagrees, no matter how fundamentally, with a decision of the Supreme Court is to end the opinion with the formula “I respectfully dissent.” Justice Antonin Scalia, in particularly high dudgeon, would sometimes drop the adverb.

Last week, though, Justice Elena Kagan, writing for the four justices who disagreed with Chief Justice John Roberts’s opinion in Rucho v. Common Cause purporting to withdraw the Court once and for all from passing judgment on the constitutionality of partisan gerrymanders, ended thus:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

Kagan’s occasion for sorrow is deep not only because the chief justice left a fundamental flaw in our constitutional democracy without hope of a judicial remedy, but because of the defective reasoning by which he came to that conclusion.

Roberts is clear and emphatic that extreme partisan gerrymanders are wrongs—wrongs of constitutional dimensions.

In North Carolina, for example, voters split more or less down the middle, yet the congressional delegation consists of 10 Republicans and just three Democrats.

The disfavored voters were treated unequally, their unequal treatment was due to their political commitments, and so they were given an unequal voice in the legislature.

This violated not only the Fourteenth Amendment’s norms of equality, but the norms of the First Amendment, as well.

Indeed, it was contrary to the most basic political premise of our government:

that the people choose their representatives, not the other way around.

Not only the chief but other justices as well have said as much in past decisions, but hesitated to offer a remedy.

All this the chief recounts in his opinion.

Yet he concludes—and now, after 40 years of temporizing, hopes to conclude definitively—that these are wrongs that are beyond judicial reparation.

If there are to be remedies, they must lie elsewhere: in the states or in Congress.


Roberts offers an argument with three simple steps.

First, he claims that some departure from equality of voice—the notion that every voter should have an equal say—is not only inevitable, but constitutionally, and as a matter of political morality, quite justifiable.

Next, he admits that the case may be an extreme deprivation of a constitutional right, an extreme gerrymander—acknowledged, deliberately engineered and frankly avowed, and arranged so as to persist though many election cycles.

But, he concludes, it is not possible to draw a precise line that separates an extreme gerrymander such as this one from a less extreme one, or between a less extreme gerrymander and one that is perfectly proper.

If splitting North Carolina’s seats 10 to three is extreme, perhaps a nine-to-four split is, as well.

But what of eight to five, or seven to six?

The courts can act, the remedy is a judicial remedy, Roberts concludes, only if the line of demarcation is “precise,” to use the word he invokes six times.

If one cannot say where the precise borderline of the extreme lies, everything must be allowed.

But applying that argument to other questions illustrates its absurdity.

If one cannot say how many hairs a man may have to still count as bald, there are no bald men. If one cannot draw the exact line between venal and mortal sin, then there is no mortal sin.

This is not a logical principle, and it is certainly not a juridical one.

The law is replete with conclusions that depend on judgments that something is extreme, unusual, or outrageous, without offering the precise boundaries of that judgment.

Take two examples from the chief justice’s own corpus.

In his dissent in the 2012 case of Armour v. Indianapolis, he wrote:

Our precedents do not ask for much from government in this area [of property taxation]—only “rough equality in tax treatment” … We give great leeway to taxing authorities in this area, for good and sufficient reasons. But every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context.”

And, similarly, in the 2007 case of Federal Election Commission v. Wisconsin Right To Life, he argued:

[Our prior precedents] … applied [the] … interest in combatting corruption or the appearance of corruption … to ads that were the “functional equivalent” of express advocacy. But to justify regulation of WRTL’s ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.

Enough is enough, indeed.

But, as Kagan argues in her dissent, this case should be easier than many in which gathering outrage tips over into judicial condemnation.

This issue has firmer bones than that.

Roberts’s faulty reasoning is built on the premise that pure equality of voice cannot and need not be demanded.

And in some ways, he is correct.

Proportional representation may be a possible end of apportioning representatives but it is not a necessary one, and the Court has no business making it one in the name of the Constitution.

An apportioning legislature may take into account many legitimate ideals in drawing district lines:

political or other historic boundaries, economic commonalities, even the desire not to pit incumbents against one another.

Drawing new lines, in other words, allows many legitimate political judgments—but disadvantaging racial minorities is not one of them, and neither should be freezing one party in and the other party out, no matter what their voting strength.

Sometimes politicians are brazen enough to declare that one or the other of these forbidden ends is what they are striving to pursue, but usually they are not.

They just do it.

In such a case, you can still smoke out the legitimate from the illegitimate.

As the mathematician and genome scientist Eric Lander argued in an amicus brief on this issue, there are literally thousands of ways of drawing equipopulous legislative districts for any given state, arrived at either randomly or pursuant to some congeries of legitimate criteria.

If only legitimate criteria are used, then political preferences are likely to be more or less evenly distributed—a normal distribution or bell curve.

The farther out on the curve you get, the more likely something fishy is going on.

It could be chance, or it could be the influence of some unsuspected factor, but if you are way out on the tail—as in North Carolina—you are staring at extreme partisanship, and you should be able to call it like it is and condemn it.

Enough is enough.

Ah, but how small, how far out on the tail?

This is not a question unique to gerrymandering; in other fields, we have settled upon practical answers and used them in practical ways:

In medicine, in approving new drugs, in statistics generally, a 95 percent confidence level is usually thought to be quite enough to show causation.

One hundred percent is absolute certainty and 50 is mere random chance, no causation at all.

But why not set the standard at something closer to 100 percent? Aristotle explained in the Nicomachean Ethics:

It is the mark of an educated mind to expect only that amount of exactness which the nature of the particular subject admits.
It is equally unreasonable to accept merely probable conclusions from a mathematician and to demand strict demonstration from an orator.

In a myriad of less consequential decisions, Roberts has shown himself to be an eminently reasonable person, an “educated mind.” But in Rucho he leads the sticklers to produce a hyper-partisan political result.

Nor should anyone find consolation in the chief’s profession of judicial modesty and abstinence, his insistence that this is just a job for other organs of government—legislatures, the states.

How can you rely on gerrymandered legislatures to remedy gerrymandering?

Remember, it is Roberts who wrote the devastating decision in Shelby County v. Holder, declaring unconstitutional Section 4 of the recently reenacted Voting Rights Act, thereby unleashing an immediate, utterly predictable, and devastating wave of partisan voting-rights suppression all over the South.

And it was Roberts who wrote for four dissenters who found that Arizona’s independent redistricting commission was unconstitutional based on a hyper-literal reading of the Constitution’s elections clause.

But for the lack of a single vote (which today he probably has), he would have closed off one of the few ways to break the vicious circle of gerrymandering.

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Re: Democrats Must Become America’s Anti-Gerrymandering Party
« Reply #14 on: July 12, 2019, 10:47:23 pm »
Saturday, 12th July 2019
GOP mapmaker's files allowed in gerrymandering trial
by Gary Robertson of Associated Press

(RALEIGH, N.C.) — A few dozen computer files recovered from the home of a deceased Republican redistricting consultant can be offered as evidence in next week's partisan gerrymandering trial in North Carolina, state judges ruled on Friday.

The three-judge panel presiding over the trial that starts Monday sided with the election reform group Common Cause, the North Carolina Democratic Party and registered Democratic voters who are suing Republican lawmakers and challenging state House and Senate boundaries drawn in 2017.

The plaintiffs subpoenaed documents from the estranged daughter of longtime GOP mapmaker Tom Hofeller that turned out to be more than 75,000 files from 22 hard drives and thumb drives that she said she came across while looking for personal mementos.

Tom Hofeller died last year.

Those who sued told the judges last week they want to offer 35 of those files that they say will show Hofeller used partisanship as a predominant motivation to help create the 2017 districts to maximize advantage for Republicans.

Lawyers for the GOP legislators argued the files mean little to the case, and can't be authenticated as authored by Hofeller because he's dead.

But the judges wrote they were satisfied there was enough information from the plaintiffs, including Stephanie Hofeller's deposition testimony, to properly validate the files as coming from her father.

And "a detailed chain of custody need not be established because there is no evidence any of the Hofeller files plaintiffs seek to admit have been altered," the Superior Court judges wrote, pointing out the files still had to comply with other rules of evidence.

Content from other subpoenaed Hofeller files in this case also have ended up in separate litigation in other states challenging a plan by President Donald Trump's administration to include a citizenship question on the 2020 U.S. census.

On Friday, the Superior Court judges — Paul Ridgeway, Alma Hinton and Joseph Crosswhite — directed that the remainder of Hofeller's subpoenaed, non-personal files stay confidential temporarily while his old consulting firm reviews them to locate proprietary information they want withheld.

"No party may disseminate any of the Hofeller files to third parties without further order of his court," the judges wrote.

The judges declined to grant a request from the Republican legislators to punish the plaintiffs' lawyers for conduct related to accessing Hofeller's files, saying they could seek redress with the North Carolina State Bar if they chose.

Hofeller's documents came to light under unusual circumstances.

Stephanie Hofeller testified she initially contacted Common Cause late last year seeking a legal referral for her mother.

She later told Common Cause that she had found computer files they may find interesting.

Those documents were formally subpoenaed in March.

The plaintiffs' attorneys said they did nothing unethical.

In light of the census cases, the attorneys for the GOP lawmakers said in court last week there was no telling how many people had reviewed documents that could obtain personal and confidential information.
The legislators' delay in bringing concerns before the court has contributed to any prejudice they claim to have suffered, the judges wrote.

The gerrymandering trial will begin less than three weeks after the U.S. Supreme Court ruled in a separate North Carolina case that federal courts won't get involved in judging partisan gerrymandering claims.

This trial, however, is in state court, and is based on alleged violations of the state constitution.

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