So What the Heck Just Happened?

On June 27, the last day of the 2018–2019 session, the Supreme Court announced two rulings affecting matters of concern to us: one to do with partisan gerrymandering and the other to do with the proposed citizenship question on the upcoming census.

Redistricting

In Vieth v. Jubelirer (2004), the Supreme Court split 4-4 on the question of whether partisan gerrymandering was justiciable, i.e., whether there was a role for the courts at all to intervene in cases of partisan gerrymandering. The court did not rule on that case at the time, but the partial dissent by Justice Kennedy left open the possibility for a role for the courts if an appropriate standard could be developed to apply in such cases. (Such standards have evolved for racial gerrymandering since the Voting Rights Act of 1965.) Since then, much of the research and advocacy regarding redistricting has been essentially to convince Justice Kennedy that such a standard was possible. With Justice Kennedy’s retirement last year, the question of justiciability has been on shakier ground. The 4-4 split remained among the other eight justices, and it was not yet clear where Justice Kavanaugh would come down.

Now we know. In Rucho v. Common Cause et al., the North Carolina (and Maryland) redistricting case, a 5-4 majority of the court, led by Chief Justice Roberts, ruled that partisan gerrymandering was not justiciable by federal courts. The Chief Justice’s opinion ruled that, while partisan gerrymandering poses a significant threat to election fairness, it was not possible to develop an applicable standard for assessing the extent of partisan gerrymandering. This, despite the fact that a number of lower courts did find that several proposed standards and measures provided clear evidence that it had taken place.

The Chief Justice’s opinion suggested that there are other routes to pursue to mitigate the danger of runaway partisan gerrymandering. His opinion cites successful state court challenges—such as in Pennsylvania—and the creation of independent redistricting commissions via citizen initiatives. That is a reversal of Roberts’s earlier view, expressed in his dissent in the 2014 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, Roberts decried Arizona’s initiative-established independent commission as an unconstitutional userpation of legislative authority to determine the “Times, Places and Manner of holding Elections,” as specified in the Constitution. Roberts also failed to note the recent attempts by the Michigan legislature to undermine the voter-approved independent commission in that state. Roberts also noted the possibility of Congressional action, without mentioning that this year’s HR1, the For the People Act, which requires states to implement independent commissions, has passed the House, but is unlikely to be considered in the Senate.

In South Carolina and 23 other states, there is no process for bringing citizen initiatives to a vote. So absent Congressional action, our next realistic recourse is legislative.

The Census

Chief Justice Roberts was also the author of the majority opinion that the administration’s attempt to add a citizenship question to the 2020 Census was unconstitutional because the rationale offered for the question (that it was needed to aid enforcing the Voting Rights Act of 1965) was “contrived.” The opinion did seem to leave open the possibility that the administration could return to the lower court to have the decision reconsidered with a different justification, and since then, we’ve been on a wild ride as the president and the Justice Department attorneys on the case tried to determine how to proceed.

At first, the Justice Department announced that the administration would not pursue the question. Then President Trump tweeted that the administration would indeed continue to pursue adding the question. The administration attorneys appeared before the lower court judge and admitted that they did not have official guidance. The judge demanded a decision in short order on how the administration would proceed. Attorneys responded that they would be pursuing the question, but it was certainly not clear how any new justification could be considered “not contrived,” especially in light of the recent discovery of documents in North Carolina proposing the question as a way of enhancing the voting power of “Republicans and non-Hispanic whites.” The administration announced that they would be replacing the entire team of attorneys. The judge denied the administration’s request. The Census forms were sent to the printer and printing commenced. Finally, on Thursday, President Trump and Attorney General Barr announced that they would not pursue the question for the 2020 Census, but that they would gather the information from other sources and they would revisit the question for the 2030 Census.

So the 2020 Census will not have the citizenship question. But it is not yet clear how much damage the debate may have done to the response rate. Our task going forward has to be to actively promote responding, especially in areas that might have been vulnerable to intimidation.

Breaking: Justice Reverses Course (was: No Citizenship Question on Census)

Update: Today, the Justice Department reversed their previous decision and announced that they will pursue including the citizenship question, despite the fact that it will delay the start of the process. Details here.

Today, the Justice Department announced that it will not contest the Supreme Court decision blocking the inclusion of a citizenship question on the 2020 census. Commerce Secretary Wilbur Ross says that printing has begun for forms without the question included.

SCOTUS Rules Federal Courts Cannot Adjudicate Political Gerrymandering

In a previous post, we discussed the concept of justiciability–the question of whether courts could take any role at all in adjudicating questions of partisan gerrymandering. Today, a 5-4 majority of the court ruled that partisan gerrymandering cases are not justiciable in federal courts. The ruling moves the battleground out of the federal courts and on to state legislatures, citizen initiatives (unfortunately not an option in South Carolina), state courts, and Congress.

In a separate ruling, the court rejected administration arguments in favor of the citizenship question on the 2020 census. It is not clear now if there is time for the administration to recreate an acceptable justification in time to launch the census or what the impact will be of the citizenship-question case currently before the Manhattan Federal District Court, which we discussed in the most recent post.

More details and analysis to follow soon.

Redistricting: It’s the Census, Stupid

While we wait anxiously for the Supreme Court ruling on the North Carolina and Maryland redistricting cases, we are also expecting a consequential ruling on the question of whether the Trump administration can include a question on citizenship in the 2020 census.

The health of our representative democracy depends on nonpartisanship when drawing the lines that define the districts in the US House of Representatives and our State House. That, in turn, depends on an unbiased and comprehensive census to provide the data that underlies redistricting. This past week, compelling new evidence has emerged that the introduction of the citizenship question on the census has partisan intent.

The 2020 census has engendered a number of controversies, including questions about the adequacy of the budget. But the single most controversial issue and the one before the Supreme Court is the question of whether to include in the main census form a question about whether each individual counted is a United States citizen. The administration claims that the question is important for enforcing the 1965 Voting Rights Act. Critics claim that there is no useful purpose for the question and even the administration’s own research indicates that the fact of the question will reduce the response rate of Hispanic and Latinx Americans.

The impact of undercounting minority groups is well understood. It can affect how resources for population-based programs are allocated to localities. It can affect apportionment, shifting Congressional representatives away from states with undercounted populations toward other states. But a recent development in the news has drawn attention to another potential impact of the citizenship question: it could be used to further gerrymander district boundaries.

Thomas B. Hofeller was a consultant for the Republican party on redistricting. Among his notable achievements was the 2011 North Carolina Congressional map that was struck down due to racial gerrymandering and re-drawn in 2016. (It is the 2016 map that is the subject of the current Supreme Court gerrymandering case.) Hofeller died in 2018. His estranged daughter, Stephanie Hofeller, discovered computer hard drives and thumb drives with records of his redistricting activities, specifically, records relevant to the issue of the citizenship question on the 2020 census.

According to the New York Times, among the documents Stephanie Hofeller turned over to Common Cause and their attorneys—who are also pursuing a suit in New York against the inclusion of the citizenship question—are these:

  • A 2015 study by Hofeller concluding that a citizenship question on the census was necessary to provide information that Republican-dominated legislatures could use to tilt gerrymandered district maps even more to the advantage of “Republicans and non-Hispanic whites.” The study was prompted by a Republican donor considering a suit in Texas to require that the Texas legislature consider only voting-age citizens when drawing districts, rather than the current practice of using total population. That suit went to the Supreme Court, which found that there was not such a requirement in the Constitution, but which did not rule out states choosing to use that criterion.
  • A memo sent to the Justice Department, part of which was used word for word in a letter from the Justice Department to the Census Bureau recommending addition of the citizenship question as a way to support Voting Rights Act enforcement.
  • A more detailed memo, significant portions of which were apparently used in the Justice Department memo supporting the Voting Rights Act justification for the citizenship question.

The Justice Department denies the accusation that their testimony was insincere, but the evidence from the disks and thumb drives has been presented to the Manhattan Federal District Court. The Supreme Court heard oral arguments about the citizenship question in April. From the transcripts, it was apparent that the conservative majority seemed ready to grant the administration request to include the citizenship question. It is not clear at this point what impact this new evidence will have on the Supreme Court ruling, but that ruling is due imminently. The Census Bureau says that printing of census forms must commence on July 1 in order to conduct a timely census.

Two New Federal Court Decisions

As we await with bated breath the Supreme Court ruling in the North Carolina and Maryland cases, the world of redistricting litigation has not been standing still. In the past few weeks, federal court rulings have been handed down in Michigan and Ohio that strongly back the position that partisan gerrymandering is unconstitutional and that propose strong remedies.

In the Michigan case, LWV of Michigan v. Benson, the federal District Court found unanimously for the plaintiffs’ claim that 34 Congressional, State House, and State Senate districts were in violation of the U.S. Constitution’s First and Fourteenth Amendment guarantees of freedom of association and equal protection under the law. As with the Pennsylvania, Wisconsin, and North Carolina cases, the analysis from the plaintiffs relied on several different quantitative analyses of the maps’ partisan biases, which we will be discussing here in future articles. The analyses use different measures of the partisan bias reflected in a particular map together with a simulation using a very large number of randomly generated maps to assess the likelihood that the map in question was drawn with the intent of creating partisan bias.

The forcefulness of the verdict is indicated by the remedy that the judges imposed. Not only does the remedy require new maps, but it also requires early elections in several of the State Senate districts. In addition, Michigan is one of the states that passed a voter initiative in the 2018 election to create an independent redistricting commission. So whatever the outcome of the court cases, Michigan will have its independent commission drawing district lines in 2021.

Meanwhile, less than a week later, a federal District Court found Ohio’s Congressional map unconstitutional on similar grounds and required new maps to be in place by June 14. Both cases will go forward to the Supreme Court, and both will await the ruling in the pending Maryland and North Carolina cases before being heard. And Ohio, too, is a state where voters approved a redistricting process that requires bipartisan approval of maps for 2021.

An Accurate Census=Reliable Data for Redistricting

                The mission of the U.S. Census Bureau is to serve as the nation’s leading provider of quality data about the people of the United States and its economy – AND to provide population information for Congressional redistricting purposes.  Every ten years, the bureau counts the population and 2020 is the year for the next count. The outcome of the census affects how many representatives you have in the U.S.  House of Representatives for the next ten years. An accurate outcome is of high importance for this and many other reasons! So, how does it work?

                 April 1st is Census Day; The census counts each resident of the country, where they live on April 1, every ten years ending in zero.  The Constitution mandates this enumeration in order to determine how to apportion the House of Representatives among the states.  That’s a good idea since the U.S. population has a net gain of one person every 17 seconds! Apportionment is the process of dividing the seats in the House of Representatives among the 50 states based on population figures collected during the census. The number of seats in the House has grown with the country. The Constitution set the number of representatives at 105 for the census in 1790. In 1913, it was increased to 435. The apportionment process is somewhat complicated, but the desired outcome is not!  The goal is for each Congressional district to have roughly the same number of people – that outcome constitutes equal representation for all which is the basis of our governmental system! After the 1790 census, each representative represented approximately 34,000 people; after the 2000 census, each representative represented 647,000 people! It should be clear that the census is an important tool in the empowerment of people in our democracy; it ensures equal representation for all!

Source: www.census.gov

Voters Rule Alert:  The matter of whether to add a question about citizenship to the 2020 Census is before the Supreme Court right now. Those who oppose the addition of such a question believe that it will cause a significant number of people (mostly immigrants) to avoid the census thereby causing the data collected to be inaccurate. More to come.

Where Things Stand Right Now

On the national level, a lot has happened related to redistricting. In South Carolina, there has been significant activity, but there is still a long road ahead. It is possible that future national developments will have an impact on the South Carolina effort, but it is too soon to tell.

South Carolina Legislature

The League of Women Voters of South Carolina (LWVSC) supports H.3054 in the South Carolina House, which will create an independent commission made up of members appointed by the legislature and the governor, and define standards for the commission to use to create fair proposed maps to send to the legislature for approval. This bill is in the Judiciary Committee. While H.3054 and its Senate companion are not the only bills related to redistricting, they are the ones favored by LWVSC, and they have bipartisan sponsorship.

South Carolina Action

Over the past two years, the League has actively promoted redistricting reform in the state. The League has developed materials for use in public presentations, and in 2017, the League held training sessions for League advocates in Greenville and Columbia. Redistricting programs have been presented to local Leagues in Charleston, Clemson, Greenville, Spartanburg, Aiken, and elsewhere. League advocates have also presented to other organizations, including the Forum Club, Sociology Club, Math Club, and a sociology class at Clemson, and the Progressive Women of Anderson County.

In addition, at least two open public fora have been held so far this year, both well attended and lively:

  • January 22, 2019, Richland County Library, Columbia. Does My Vote Even Count: A Forum on Election Reform, panel discussion with Reps. Beth Bernstein, Gary Clary, and Kirkman Finlay, Senator Mia McLeod, and experts Duncan Buell and John Ruoff, on voting machines, voting rights, redistricting, and related topics.
  • March 12, 2019, Greenville County Library, Greenville, Beyond the Basics: The Math of Gerrymandering, presentation by Dr. Anne Catlla, Wofford University.

A fall 2018 Winthrop University poll showed that nearly 70% of South Carolina voters support the idea of independently drawn districts. This is similar to levels of support shown across the country. Some preliminary analyses by news analysis sites, such as FiveThirtyEight.com’s Redistricting Project, suggest that South Carolina’s Congressional district map is highly gerrymandered. I and a team of students are engaged in a more detailed analysis of our state Congressional and legislative maps.

LWVSC’s action priority is to keep the issue in the public eye, continue to inform our citizens, and press legislators to support the bills. While LWVSC has limited resources for a publicity campaign, please watch for information about mobilization from the League.

National Update

In 2017–2018, the Supreme Court heard political gerrymandering cases from North Carolina, Wisconsin, and Maryland, and remanded them back to lower courts. This year, the North Carolina and Maryland cases returned to the Court; oral arguments were heard March 26 with a ruling expected in June.

Two recent research reports suggest that gerrymandering has broad electoral and social impacts; for example, as we experience in SC, uncompetitive districts lead to uncontested elections and lack of choice for voters. And independent analyses show that gerrymandering had a significant effect on the outcome of 2018 Congressional races and state legislative races in several states.

Voter initiatives have been used successfully in several states to institute redistricting reforms. Unfortunately, that option is not available to voters in South Carolina. The US House passed HR.1, a broad voting rights and election reform bill that includes a provision for requiring independent redistricting commissions in every state. The bill is not likely to be taken up in the Senate.

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.

How to Gerrymander!

Imagine you are a political party. At present, you control the legislature and executive of your state government and you have the power to draw the maps that divide the state into Congressional and legislative districts. You want to ensure that you retain control of the legislature in future elections, even if the voting public shifts away from you. Can you do that with district maps?

Or you are a group of self-interested officials who can make their own individual lives easier by manipulating district maps. Remove the potential well-funded and popular competitor for your seat. Grab a few more likely voters and give away a neighborhood that you lost last time. Keep your biggest donor in your district. Can you do that with district maps?

Yes, that’s precisely what gerrymandering is. With publicly available information, one can draw maps that carefully allocate likely voters in your party and likely voters in the opposition party to districts in order to ensure that your party is overrepresented. The objective is to make the opposing party waste as many votes as possible and make your party waste as few as possible. We think of a vote as “wasted” if it goes to a losing candidate or if it goes to a winning candidate beyond the margin necessary to win. The two techniques for creating wasted votes are “cracking” and “packing.”

Cracking means to split your opponent’s votes across districts so that they don’t constitute a majority in any of them. When cracking, you want your opponent’s votes to be as large a minority as you can afford, although you want to leave a bit of a buffer to account for moderate shifts in voter preference. Cracking maximizes the number of wasted opposition votes that go to losers and minimizes the number of your wasted votes that go to winners.

Packing means to concentrate your opponent’s votes into a few districts where they constitute an overwhelming majority. You don’t mind if the opposition wins some seats, as long as they don’t win enough to threaten control. Packing maximizes the number of wasted opposition votes that go to winners and minimizes the number of your wasted votes that go to losers.

Preserving partisan power isn’t the only motivation for gerrymandering. Other forms of gerrymandering are employed to protect incumbents. For example, a district might be drawn to exclude a popular potential primary opponent. Before passage of the voting rights act in 1965, districts were gerrymandered to reduce the influence of minorities, particularly African-Americans. The practice persists today and since a Supreme Court decision in 2013, legal action has been required to remedy racial gerrymandering when it occurs.

We often think of gerrymandered districts as having strange-looking maps, and indeed, that is often the result. But districts with strange shapes are not necessarily gerrymandered and gerrymandered districts need not have strange shapes. Odd shapes are sometimes necessary to preserve the voting power of communities of interest or minority communities. And with modern mapping technology and data, it is possible to draw perfectly reasonably shaped districts with strong partisan biases.

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