SCOTUS Oral Arguments, March 26, 2019

On March 26, the Supreme Court heard oral arguments in two redistricting cases: Benisek v. Lamone from Maryland and the consolidated cases Rucho v. Common Cause and League of Women Voters of North Carolina. In the former case, individual Republican voters have challenged the drawing of Maryland’s Sixth District (in the western part of the state). In the latter case, the challenge is to the map implemented by the Republican-controlled legislature in response to a racial gerrymander case. This is the first time since the retirement of Justice Kennedy and the installation of Justice Kavanaugh that the court has heard arguments regarding partisan redistricting.

(Descriptions in this post are drawn from reporting done at NPR (here and here) and the New York Times (here, here, and here). The transcripts of the hearings are here and here.)

The most interesting moments belong to Justice Kavanaugh, who doesn’t have a record of interactions from previous hearings, but who was quite engaged here. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.” He also wondered whether other remedies—state courts, Congressional action, or state ballot initiatives—could solve the problem without Supreme Court action. “Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he asked.The main concern of the justices was the same in this hearing as it has been throughout the history of gerrymandering cases: Is the question of how districts are drawn (or indeed partisan actions by elected officials in general) justiciable? That is, is it a question that the courts can or should decide? On the negative side, justices cite the Constitution’s stipulation that state legislatures should determine the “times, places, and manner” of elections, subject to supervision by Congress. In addition, some justices expressed concern that by intervening in partisan matters, the courts risked their reputation for being nonpartisan. Hence the search for an impartial standard by which to determine whether partisan gerrymandering is out of bounds. Further, Justice Gorsuch pointed to voter initiatives in some states that have mandated independent commissions as providing an alternative remedy.

On the other side, the argument is that partisan gerrymandering violates the First Amendment guarantees of freedom of speech and association and the Fourteenth Amendment guarantee of equal protection by discriminating against voters in the minority party. Not all states allow voter initiatives (South Carolina does not). And while Congress could act (HR-1 in the current session has passed the House and requires independent commissions), it has not yet and it is unlikely that it will soon.

One interesting aspect of the arguments here is that conservative justices expressed concern about the effect on Republicans of the Maryland map. It seems that hearing one case from each side of the political divide might have opened some justices’ minds to arguments from the other side.

How (Not) to Tell You’ve Been Gerrymandered (Part I of Several)

In a previous post, we explained how sophisticated map analysis can support drawing district lines that result in party representation in the legislature that is dramatically different from the distribution of support for a party in the population. Over several upcoming posts, we will describe the analyses that are being used to identify biased district maps and to try to persuade courts of bias. The analyses are somewhat mathematical but largely not beyond the comprehension of the general reader with modest effort. In this outing, we provide some background on the court decisions that set the parameters for these analyses.

What does the Constitution of the United States of America require regarding district maps? First, that a census be conducted every ten years and that representatives be apportioned to the states according to their populations, except that every state gets at least one representative. The Supreme Court of the United States has ruled that all districts that elect representatives to any office except the United States Senate must have equal-sized populations. This is the principle known as “one person, one vote.”

Section 4 of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

In the absence of Federal legislation to thwart partisan gerrymandering, some politicians and strategists argue that the power to draw maps rightfully belongs to the legislature and that there is nothing wrong with the majority party controlling the outcome of that process. Opponents of partisan gerrymandering argue that, as a consequence of the First Amendment’s guarantee of freedom of assembly and the Fourteenth Amendment’s guarantee of equal protection of the laws, that maps with excessive partisan bias should be considered unconstitutional. The question has come before the United States Supreme Court several times, but has not been ruled on decisively.

In the 2004 case, Vieth v. Jubelirer, the Court considered whether the question of partisan gerrymandering was even justiciable. The Court split four-four on the question. Justice Kennedy sided with the conservatives in declining to intervene in the case, but whereas the four conservative justices argued that partisan questions could not be justiciable, Kennedy wrote a separate opinion arguing that if appropriate standards could be developed, partisan gerrymandering could be taken up in the future. It is Kennedy’s opinion that has spurred efforts to develop the analyses that are being used in current cases.

One simple idea for a test is proportionality, the idea that the number of seats a party holds should approximately reflect the party’s support in the general population. Indeed, stories in the press often note violations of proportionality as an indicator of bias and it can serve as a red flag, prompting further analysis. But proportionality has several problems that make it unsuitable as a standard for evaluating partisan bias.

An important mathematical issue is that when voters’ party preferences are not extreme, the seat balance is sensitive to small differences in party preference. In particular, on average, a specified level of voter preference for the majority party tends to translate to an even higher percentage of seats. In addition, courts are reluctant to consider proportionality as a criterion, in part because it is difficult to establish standing to sue. In the U.S. legal system, standing is achieved by demonstrating that one has suffered direct harm, which is difficult to argue based solely on lack of proportionality.

In future posts, we will describe the methods that are currently being used in gerrymandering court cases and in support of legislative initiatives.