Gerrymandering

Gerrymandering as Viewpoint Discrimination: A “Functional Equivalence” Test

by

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

After listening to the oral arguments in the Supreme Court’s two gerrymandering cases last week, one from North Carolina and the other from Maryland, I think there may be a way to simplify the First Amendment analysis that is causing the Court (and the litigants) so much trouble.  The simplification would be based on a distinction between (a) the applicable standard in principle and (b) the statistical evidence required in practice to show a violation of the applicable standard.

The applicable standard would be based on the recognition that it would violate the First Amendment for a state legislature, when enacting election laws, to engage in any facially explicit discrimination on the basis of partisanship.  Suppose, for example, that Maryland’s legislature enacted a law explicitly providing that to win an election a Republican candidate must receive a majority of votes (more than 50%), but to win the same election a Democratic candidate must receive only a plurality of votes (more than any other candidate). This law, in other words, would make any votes for third-party, independent, or write-in candidates work to the advantage of the Democratic candidate at the expense of the Republican candidate. Under this hypothetical statute, there would be a runoff only if and when the Republican won a plurality but not a majority; the Democrat would be declared the winner without a runoff based on a mere plurality.  This facially asymmetrical state law would be undoubtedly unconstitutional under the First Amendment, as a form of blatant viewpoint discrimination on the basis of partisanship.

It would not matter that the degree of facial asymmetry was relatively small.  This hypothetical is not as extreme as if the legislature required Republicans to win elections by a two-thirds supermajority (otherwise, the Democrat would be seated).  But that fact would make no difference. Any degree of explicit partisan asymmetry would be a form of unconstitutional viewpoint discrimination.

Justice Alito recognized this point during the oral argument in the Maryland case.  He asked the plaintiff’s counsel (at 34): “if your claim is based on the First Amendment, doesn’t that necessarily mean that partisanship cannot be taken into account at all, not one iota?” When the lawyer demurred, Justice Alito pressed: “Have we ever said that there’s such a thing as benign viewpoint discrimination under the First Amendment? . . . Or, you know, you can discriminate on the basis of viewpoint, but it just has to be small?”

The difficulty with gerrymandering litigation under the First Amendment, as I’ve discussed previously, is that it is not a form of facially explicit discrimination.  Redistricting laws are not written explicitly in terms of partisanship, but instead in terms of facially neutral lines on a map or words that demarcate geographical boundaries.  The challenge is knowing when those facially neutral laws function as a form of viewpoint discrimination on the basis of partisanship.

To be sure, there may be rare cases in which a state legislature brazenly acknowledges that it is drawing the lines in order to discriminate on the basis of partisanship.  Indeed, the two pending cases before the Court may be rarities of this kind.  But, as several of the Justices observed during the arguments, if the Court condemns self-declared partisan gerrymanders as unconstitutional, then legislatures will not be so brazen in the future, and the Court will need a way to determine which maps actually operate as a form of unconstitutional viewpoint discrimination.

Here is where it may be useful to distinguish between (a) the standard itself and (b) the evidence that shows a violation of the standard.  We can state the standard this way: a redistricting map violates the First Amendment if it is the functional equivalent of facial discrimination on the basis of partisanship.  A plaintiff is able to win a claim based on this standard if, but only, if the plaintiff presents evidence demonstrating that the map is in fact the functional equivalent of facial discrimination based on partisanship.

How is a plaintiff able to do that? In the absence of an explicit admission, the only way is the kind of statistical evidence that the plaintiffs relied upon in the North Carolina case.  If thousands of alternative maps randomly generated by computers demonstrate that the actual map is an extreme statistical outlier insofar as it advantages a political party more than all the alternative maps do, then one can confidently say that the actual map is the functional equivalent of a state statute that contains a facially explicit preference for that political party.

But there still remains the question of how much partisan advantage the statistics must show.  The actual North Carolina map is superficially extreme, without regard to statistical analysis, insofar as it regularly produces a 10-3 split in favor of Republicans when the state is more evenly balanced between the two major political parties.  Statistical analysis, in fact, confirms that the actual map would not be chosen except by a legislature deliberately wanting to create a structural advantage in favor of one political party—making the map the functional equivalent of facially discriminatory legislation on the basis of viewpoint.

Suppose, however, that statistical analysis would also show that a 9-4 map, or an 8-5 map, would be an extreme outlier relative to all the randomly generated maps; would this showing, then, demonstrate the legislature’s chosen map to be the functional equivalent of facial viewpoint discrimination?

Although the plaintiffs seemed to waffle when faced with this kind of questioning at the oral argument, I think upon reflection that the correct answer clearly must be yes.  As a practical matter, this situation seems unlikely.  The nature of the statistical analysis is such that a relatively small deviation partisan balance—an 8-5 map, instead of 7-6, for example—is unlikely to end up an extreme outlier in the tail of a statistical distribution.  But if it did, it would be demonstrable evidence that the 8-5 map was the product of partisan favoritism, and not viewpoint-neutral legislation.  To Justice Alito’s crucial point, if a little bit of viewpoint discrimination is unconstitutional under the First Amendment, then legislation deliberately designed to produce an 8-5 partisan advantage (when viewpoint-neutrality would yield a 7-6 map) is just as improper as legislation deliberately designed to produce a 10-3 map.

In an effort to be clear on this point, if the statistical analysis does notdemonstrate an 8-5 map to be an extreme outlier, then the map cannot be challenged as the functional equivalent of facial viewpoint discrimination.  But if the statistics does show an 8-5 map to be an extreme outlier, then it is the functional equivalent of a statute that is facially discriminatory on the basis of partisanship.  It all depends upon what the statistical analysis actually shows. The principle remains the same: maps that are statistical outliers are the functional equivalent of facial discrimination.  But it depends on the actual evidence of the random maps generated by the computer simulations to know whether a particular map is, in fact, a statistical outlier.

It seems also important to acknowledge that point that several Justices emphasized: deviations from proportionality are relevant to determining whether a map is unconstitutionally discriminatory.  In this regard, consider another example: suppose in a given state, the actual map regularly produces an evenly balanced 5-5 split between Republicans and Democrats, but statistical analysis shows that this map is an extreme outlier because most computer-generated maps based solely on nonpartisan geographical considerations yield 7-3 splits in favor of Democrats.  Suppose, further, that in this state the statewide balance between Republicans and Democrats is roughly 50%-50%, and thus the 5-5 split in the actual map corresponds to this statewide balance, thereby offsetting the “disproportionality” caused by geographical considerations.  If in this situation the actual map would be valid, as it would seem to be under the holding of Gaffney v. Cummings, the reason is that the map does not discriminate against either political party relative to the statewide baseline of partisan balance, and it is not discriminatory for a state to endeavor to replicate this statewide balance when drawing district lines even when doing so is to offset a geographical advantage that one party otherwise might have.

Another way to make this point is to say that if a facially neutral statute achieved proportionality it would not be unconstitutional.   For purposes of determining representation in a state legislature, there would be nothing wrong with a state statute explicitly providing that each political party receives the same number of seats as its share of the statewide vote.  Although the federal Constitution does not command this kind of strict proportional representation, it also does not condemn it. (This point, by the way, answers Justice Alito’s separate concern about access of speakers to a public park. Making shares of legislative seats turn on a party’s share of votes is not the same as the government making its own viewpoint-based determination, distinct from any content-neutral criteria, of which speakers get to use a public park.)

But a state statute could not, consistent with the First Amendment, explicitly state: “When Republican candidates receive 60% of the votes, they shall receive only 40% of the seats.”  That would be another form of facially explicit viewpoint discrimination. Thus, when a map is the functional equivalent of this facial disproportionality, it is equally problematic under the First Amendment.  Acknowledging this point does not mean that the First Amendment requires strict proportional representation.  It does not. At the same time, however, it can be recognized that deviations from proportionality is relevant to determining whether viewpoint discrimination, or its functional equivalent, is occurring.

Does all this analysis mean that any partisan favoritism in the drawing of district lines is unconstitutional viewpoint discrimination? I don’t think so, and the reason is that partisan favoritism as the motivation underlying a statute is not necessarily the functional equivalent of facial discrimination on the basis of partisanship.  A facially discriminatory law has both a discriminatory intent and a discriminatory effect imbedded in the text of the statute itself. The discriminatory effect follows from the operation of the facial discrimination.  For example, a tax law that explicitly sets a different rate of taxation for Democrats and Republicans inevitably has the effect of discriminating on the basis of the facial distinction.  By contrast, a law that is not facially discriminatory but is motivated by bias might not actually have a discriminatory effect in operation: the example of a facially neutral law that is premised on an inaccurate hunch that it might favor one party is a law that has a discriminatory motive but not necessarily a discriminatory effect.

The “functional equivalence” standard prevents laws motivated by partisanship from being unconstitutional unless they also exhibit a distinct discriminatory effect.  A facially neutral law is invalid viewpoint discrimination if, but only if, it operates to have a discriminatory effect that makes it the functional equivalent of facially explicit viewpoint discriminatory.

This standard, in other words, does not invalidate a state legislature’s redistricting map just because it was motivated by partisan favoritism. Instead, it invalidates the map only if that partisan favoritism is tantamount to facially explicit discrimination on the basis of partisanship.  But defining the scope of constitutionality liability in this way is just as it should be given the First Amendment.  What is impermissible is for the legislature to enact election laws that explicitly turn on viewpoint discrimination, and this standard invalidates those laws—but only those laws—that are essentially the same.

The Gerrymandering Cases

by

A memo analyzing the First Amendment and Article I issues, explaining why the latter is the better basis for judicial review of congressional gerrymanders.      

[In my final exams, I often ask students to write “bench memos” to Supreme Court justices in important pending cases. For a change, I thought it might be interesting to put the shoe on the other foot, so to speak, and to require myself to do what I routinely ask of my students.]

The two pending cases to be argued March 26—Rucho v. Common Cause and Lamone v. Benisek, the first from North Carolina and the second from Maryland—attack congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty.  But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate’s ability to remove incumbent representatives whose performance in office the electorate repudiates.  The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison, while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.

 

The Problem with the First Amendment and Equal Protection Claims

Both the First Amendment and Equal Protection claims in these cases rest on the same proposition that gerrymandering wrongly discriminates against members of a political party because of their partisan affiliation.  Given this commonality, as well as the fact that the plaintiffs themselves prioritize their First Amendment argument, this memo will also focus on the First Amendment. But this memo’s analysis of the First Amendment issue applies as well to plaintiffs’ Equal Protection claims.  Both share the same weakness, which is the difficulty of condemning the choice of a legislative district’s boundaries as a form of unconstitutional discrimination based on the party identification of voters who reside in the district.

While some forms of government discrimination on the basis of partisanship violate the First Amendment, not every kind of governmental differentiation based on party affiliation is unconstitutional. The majority party in each chamber of Congress gives itself more seats on legislative committees and subcommittees than it gives to the opposition party.  Similarly, administrative agencies, like the FCC, often have more members from one political party than another.  And even though the First Amendment has been construed to prevent partisanship as a basis for employment decisions with respect to subordinate federal employees, Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), a president clearly can make party affiliation a factor in appointing cabinet-level and other policymaking officials.

The question is whether the First Amendment prevents making partisanship a factor in drawing legislative districts.  Can the majority party favor itself, at least to some extent, when exercising the discretion of where to draw the district lines, just as it favors itself (at least to some extent) when determining legislative committee assignments, or hiring some policymaking staffers? Or instead is legislative districting the kind of decision, like determining who gets a license for a parade on a public street, or who gets hired as a state university professor, for which the First Amendment requires that partisanship play no role whatsoever?

To ask these questions, drawing this conceptual distinction, would seem to suggest legislative districting belongs on the side of the line that permits consideration of partisanship as part of the government’s discretion to organize its own operations.

Historically, it has long been thought that it is permissible, even if sometimes objectionable, for partisanship to play a role in the drawing of district lines. When Patrick Henry had to decide where to draw the lines for Virginia’s districts in the first congressional election, one way to draw the lines would favor one nascent political faction (to which Henry and James Monroe belonged), while another way to draw the lines would favor a different political faction (to which James Madison belonged).  It might have been “pure politics” rather than “good government” to decide to draw the district line to favor the preferred faction, but this political decision was not in and of itself unconstitutional. And although the First Amendment did not exist until after Madison won this first election and drafted the Bill of Rights, it is unreasonable to think that the purposes of the free expression clauses of the First Amendment were even in part to render invalid the kind of political districting decision that Patrick Henry had made.

The plaintiffs in these cases do not agree among themselves on how the First Amendment applies to redistricting.  The Common Cause plaintiffs in the North Carolina case take the position that any redistricting motivated by “invidious” partisanship violates the First Amendment regardless of what actual effect that partisan motive might have.  That position, however, seems flatly inconsistent with the Court’s decision in LULAC v. Perry, 548 U.S. 399 (2006), a case these plaintiffs do not cite.  That position also seems contrary to basic First Amendment principles (the government does not violate a citizen’s rights to free expression simply because government officials have bad thoughts about the citizen’s political views) as well as the Court’s election administration jurisprudence under Anderson-Burdick-Crawford balancing. While the degree of scrutiny under A-B-C balancing varies with degree of burden on voting rights, there presumably needs to be some measurable harm to voting rights in order to trigger even the most minimal level of judicial review. Improper intent, without any showing of actual harm, would not be enough.

To illustrate this point, suppose the government must decide where to locate a new polling place.  There are two options, X and Y.  The government has no evidence that either X or Y would be better or worse for either Democrats or Republicans.  But on a hunch the government officials responsible for this decision think that X might be better for Democrats and for that reason choose X.  This invidious intent, without some actual evidence of harm, would not be a sufficient basis under the First Amendment for the judiciary to enjoin the choice of X as the new polling location.  All voters, whether Democrats or Republicans, who live in the relevant precinct would be equally entitled to vote at this new location. There would be no formal discrimination among voters on the basis of party affiliation.  Without any proof that it actually would be more burdensome for Republicans than Democrats to go to X to cast their ballots, there would be no basis for invalidating the government’s choice of location even with the evidence of improper motive.  In the absence of such evidence of discriminatory effect, Y might be just as bad or even worse.  If voters did not actually suffer, there is no point undoing the government’s inappropriately motivated decision.

Under the test advocated by the Common Cause plaintiffs, however, a government’s redistricting decision would violate the First Amendment without any showing of actual harm (beyond the bare minimum necessary for standing) simply because the government officials had a hunch that drawing the district one way, rather than another, might have the effect of benefiting one party over another.  The North Carolina map at issue in Rucho may be an especially egregious gerrymander, which in fact gives considerable electoral advantage to one party over another.  But the test proposed by the Common Cause plaintiffs is hardly limited to such “outlier” maps.  Just the opposite.  It would invalidate any map upon a showing that any district line was drawn because of favoritism for one party.  (See especially pages 44 & 56 of their brief.) That test would rule out, it would seem, any redistricting whatsoever undertaken by a state legislature—a result that might be desirable as a matter of policy, but one that hardly seems compelled as an interpretation of the First Amendment.

The League of Women Voters plaintiffs in the North Carolina case do not advocate such a lenient standard. They say that the discriminatory effect of a gerrymandered map must be “large” and “durable” (at page 55) to be unconstitutional. But they do not offer any principle rooted in the First Amendment for determining when a map has a “large” and “durable” effect of the wrong kind. They offer multiple metrics for showing that a map has an asymmetrical bias in favor of one party. But the First Amendment does not require that legislative districting satisfy a symmetry standard (see LULAC v. Perry); there are entirely valid reasons of geography why a redistricting map would by asymmetrical, and these plaintiffs do not explain the degree of asymmetry that would cause a map to be unconstitutional.  After each decennial census, when it is time to draw new legislative districts, there is no federal constitutional obligation on the part of the mapmaker to draw maps that satisfy a partisan symmetry standard at the same time that the mapmaker considers other redistricting criteria.

In a footnote (at 60 n.17), these plaintiffs say that in future litigation an “asymmetry threshold” could be developed that is similar to the “population deviation threshold [of] ten percent” for adjudicating Reynolds v. Sims claims. But this footnote misses a key distinction between the two types of claims. Equality is the constitutional standard under Reynolds, and 10% is considered a tolerable deviation for purpose of practical implementation.  By contrast, perfect symmetry (in other words, zero asymmetry in favor of a political party) is not the constitutional standard, and thus the search is not merely for some practical way to implement an identified constitutional standard, but instead the search is to determine the constitutional standard itself.  That key component of the First Amendment claim is still missing.

The Benisek plaintiffs in the Maryland case offer yet a third theory for when a gerrymander violates the First Amendment.  In their view (see especially pages 34-35 of their brief), the First Amendment constitutionalizes a prohibition against vote dilution on the basis of party affiliation that is equivalent to the statutory prohibition against vote dilution on the basis of race under the Voting Rights Act.  But VRA vote dilution claims can be especially difficult to adjudicate; LULAC v. Perry, again, is a good example. If Congress passed a statute that made vote dilution on the basis of party affiliation unlawful, then the judiciary would be required to consider these claims, as it does under section 2 of the VRA. But the difficulty of these dilution claims is reason to pause before concluding that the Constitution itself imposes this standard (and has ever since the adoption of the First Amendment as part of the Bill of Rights).

One way to see why race-based vote dilution claims do not translate easily into similar party-based claims is to consider the issue of at-large elections. If a government employs at-large elections with the intent to dilute African-American voting power, that intentional race discrimination is directly actionable under the Fifteenth Amendment.  Rogers v. Lodge, 458 U.S. 613 (1982).  But suppose a government decides to use at-large elections, rather than district-based elections, based on a belief that at-large elections will favor one political party in its competition with an opposing political party.  (At-large elections are impermissible for elections to the U.S. House of Representatives, but that is only because of a congressional statute.  Plaintiffs’ First Amendment theory would apply to all state and local elections.)  At-large elections provide all voters equal voting rights in terms of Reynolds v. Sims.  But, as is well known, at-large elections can give a hugely disproportionate boost to the majority party in a locality.  Imagine a city where recent elections indicate that Democrats have a 60-40 advantage over Republicans citywide.  At-large elections for city council seats would make it likely that Democrats could win all the seats, whereas it might be possible with district-based elections for Republicans to have representation on the city council.  If Republicans made this proposal, the Democrats in control might reject it solely because they view retaining at-large elections as advantageous to their party.  While that kind of partisan motivation for at-large elections is hardly good government, it has never been deemed unconstitutional. It would be a revolution in First Amendment jurisprudence to hold that plaintiffs could invalidate at-large elections, replacing them with district-based elections, based solely on a showing that at-large elections were retained for reasons of partisan advantage.

There is a simple explanation why the three groups of plaintiffs offer three different versions, each conceptually flawed, of how the First Amendment applies to gerrymandering.  The explanation is that the First Amendment is ill-suited to imposing constraints on legislative districting, given that all districts already must comply with the basic equality principles of Reynolds v. Sims.  How the drawing of district lines unconstitutionally favors one political party in violation of a “neutral redistricting requirement” embedded in the First Amendment is a hard argument to make, as a matter of both history and First Amendment theory. (The strongest version of the First Amendment argument is presented, not by any of the plaintiffs, but instead in the amicus brief submitted by the ACLU.  Even in this brief, however, there is a tension between the general “neutrality” idea it advances and the specific “entrenchment” standard it proposes: partisan favoritism in redistricting that falls short of entrenching a structural advantage for one party would contradict nonpartisan neutrality; yet if the First Amendment only bars gerrymandering that amounts to entrenchment, the brief does not explain how this limited anti-entrenchment doctrine is derived from the much broader neutrality idea or from the First Amendment itself.)  But the First Amendment is not the only provision at issue, and the difficulties it suffers in this context do not apply to the separate Article I analysis.

 

 Article I’s Aversion to Incumbency Protection

Unlike the First Amendment, Article I does not contain an anti-discrimination principle that is conceptually difficult to apply in the context of drawing legislative districts. Instead, Article I contains the principle that elections to the federal House of Representatives should be responsive to the changing political views of the electorate.  This principle is reflected in the basic Article I requirement that all House members must face the voters every two years, whereas Senators have six-year terms.

This responsiveness requirement has implications for judicial review under Marbury v. Madison. If a state legislature decided that it did not like the frequency of biennial elections and wanted to insulate the state’s congressional representatives from the obligation to seek reelection every two years, the state legislature might enact a law saying that the state will not actually hold these elections “every second year” but only every fourth or sixth.  Or even if the state undertakes the effort of conducting the polls biennially, it could decide not to use the results as a basis for ousting an incumbent who loses the poll, but instead treats the result as a Gallup-type public opinion survey to learn the mood of the electorate but without any actual electoral consequences for the incumbent.  These hypothetical state laws would be blatantly unconstitutional under Article I, and it would be the obligation of the federal judiciary under Marbury to invalidate them.  This point would be true whatever Congress had, or had not, said on the matter pursuant to its own supervisory power to regulate congressional elections—a point that makes clear, contrary to the assertion in Paul Clement’s brief for the Rucho Appellants, that state laws regulating congressional elections are not immune from judicial review (under the political question doctrine) simply because Congress has the power to override state laws on this topic.

It is possible to imagine other state laws that would violate this Article I responsiveness principle.  Suppose, for example, that a state law required challengers to win two-thirds of the vote in order to unseat House incumbents.  This supermajority requirement, although not as extreme as giving challengers zero chance to defeat incumbents, would still be inconsistent with the basic principle that the electorate is entitled to “throw the bums out” every two years, if that’s what the electorate wants.  Given the essential nature of the federal House of Representatives created by Article I, as the primary locus of popular sovereignty in the national government, a state’s rules for electing Representatives should not have a built-in structural advantage for incumbents. (If a state legislature endeavored to undermine popular sovereignty in the election of the federal House of Representatives in ways other than the protection of incumbents—for example, by insisting that incumbents win by two-thirds of the vote in order to retain their seats—that kind of impediment to popular sovereignty would also violate Article I.  See Cook v. Gralike, 531 U.S. 510 (2001).  But to consider the constitutionality of the legislative districting in these cases under Article I, it suffices to focus on the way in which the improper protection of incumbents contravenes the responsiveness principle inherent in Article I.)

Extreme gerrymanders can function as incumbency-protection mechanisms antithetical to this basic responsiveness principle.  Although not exactly the same mechanism as a two-thirds voting requirement, a gerrymandered district can operate as the functional equivalent of a supermajority voting rule.  Consider how gerrymandering works in comparison to at-large elections. Imagine a state in which at-large elections to the federal House would be intensely competitive (if Congress permitted at-large House elections, as it used to do and constitutionally could do again), with the expectation that the statewide electorate would be divided close to 50-50 between the competing candidates.  Now suppose that the state legislature replaced at-large elections with a gerrymandered district-based map so that each gerrymandered district was electorally uncompetitive, and the incumbent had a 65-35 advantage over the challenger.  The resulting situation, which is possible for gerrymandering to accomplish even when statewide races would be 50-50 competitive, would be essentially equivalent to imposing a two-thirds supermajority voting requirement on challengers.  Just as an explicit two-thirds voting requirement for House elections imposed by state law would violate Article I because of its inconsistency with the basic responsiveness principle, so too should the gerrymandering of House districts by state law that operates essentially as the same supermajority voting requirement and thus is equally antithetical to the fundamental responsiveness principle.

It is possible to measure the degree to which a gerrymandered map insulates incumbents from electoral competition. The same technique of statistical simulation that plaintiffs use (see pages 12-16 of their brief) in an effort to measure partisan bias could be employed to measure what’s relevant for Article I: improper incumbency protection.  Here’s how it would work: the computers would be programmed to generate thousands of random maps using geographically valid districting criteria (equal population, compactness, respect for municipal and other local boundaries, and so forth).  For each map, it would be possible to compute an average competitiveness score for all districts; this would be similar to computing a competitiveness score for at-large elections, but instead of a single statewide competitiveness measure, there would be a series of district-specific competitiveness measures, and the average of this series would be calculated.  (The Cook Political Report’s PVI is one commonly used measure of a congressional district’s competitiveness.) The average competitiveness scores of all these randomly generated maps would be plotted on a graph, and it presumably would look something like the traditional bell curve. The average competitiveness score of the actual map adopted by the state legislature—the one alleged to be a gerrymander—could be compared to this graph.  If the actual map was a statistical outlier, in the extreme tail of the bell curve, then it would mean that the actual map adopted by state law insulated incumbents from electoral competition to an extreme degree and in a way not necessitated by geographically valid districting criteria. To be sure, a state always should be entitled to offer a defense of a map that is a statistical outlier, but if the state can offer no legitimate reason for its incumbency-insulating map, then the map should be invalidated under Article I as inconsistent with its basis responsiveness principle.

This Article I analysis does not suffer from the defect that afflicts the First Amendment inquiry.  The Article I analysis identifies the relevant principle (responsiveness) and the problem that contravenes that principle (incumbency insulation).  The analysis then employs a measure of the problem itself (degree of incumbency insulation), not any proxy for the problem. It calls for the invalidation of maps if, but only if, they exhibit the problem to a statistically significant degree. Gerrymanders do not violate Article I if they give a slight edge to incumbents, and this is true even if they are motivated by an improper incumbency-protection purpose.  (For the same reason, at-large elections to the House, if ever permitted by Congress again, would not violate Article I even if a state adopted at-large elections in the hope that they would give an advantage to incumbents.  The capacity to “vote the bums out” always exists in an at-large election, as long as there is no supermajority voting requirement.   Only a gerrymander that gives an artificial edge to incumbents beyond what would exist in at-large elections—an artificial edge equivalent to a supermajority voting requirement—would be actionable under Article I.)  In sum, a gerrymander must generate a statistically measurable structural advantage for incumbents, amounting to an extreme impediment to electoral competition between incumbents and challengers in comparison to what would occur in the absence of the gerrymandered map, in order to justify judicial invalidation of the map under Article I.

This Article I analysis has additional advantages absent from the First Amendment (or Equal Protection) inquiry.  It applies only to congressional elections, not state or local ones.  Therefore, with respect to a topic that has proved judicially difficult for decades, it is advantageous that this approach applies only to a relatively small subset of the topic—and the one most appropriate for the federal judiciary’s involvement.  The gerrymandering of state and local elections can be handled by state courts under state constitutional law in our federal system.  The gerrymandering of congressional elections, by contrast, requires the federal judiciary to remediate (assuming, as analyzed above, that Article I imposes a constraint on gerrymandering).

This Article I analysis also can acknowledge an appropriate role for Congress in policing the gerrymandering of congressional districts by state legislatures, if Congress chooses to exercise this constitutional authority.  The fact that Congress has this power does not mean that the political question doctrine bars the exercise of judicial review under Marbury.  As indicated above, the courts must block state laws violative of Article I even if Congress has not acted.  But insofar as Congress does have legislative authority in this area, the federal judiciary can appropriately take a subsidiary role and defer to Congress if and when Congress chooses to develop its own rules and procedures for policing improper state-law gerrymanders.  While not exactly the same as “dormant Commerce Clause” jurisprudence, judicial enforcement of Article I can recognize the primacy of Congress to regulate this political subject matter that minimizes the risk of judicial overreach.  In this respect, Article I (like the Commerce Clause) is in sharp contrast to the First Amendment or Equal Protection: with respect to those constitutional clauses, if the Court issues a pronouncement it necessarily occupies the entire field, crowding out any contrary Act of Congress on the matter.  By contrast, with respect to Article I, like the Commerce Clause, the judiciary can give Congress the last word, assuming that Congress has acted within the scope of its own authority.  The judicial invalidation of a state law on Article I grounds, like the judicial invalidation of a state law on “dormant” Commerce Clause grounds, can yield to supervisory congressional legislation that appropriately enforces Article I. In this way, a judicial invalidation of a state-law gerrymander on Article I grounds is not nearly so momentous a ruling as would be a judicial decision resting on First Amendment or Equal Protection grounds. (It is possible also that extreme partisan gerrymanders might violate the “fair play” principle inherent in due process, but that kind of constraint against outlier maps would not entail strict partisan neutrality in redistricting, and in any event is an analytically distinct claim that the plaintiffs have not argued in these pending cases.)

 

Conclusion

Based on the foregoing analysis, this memo recommends vacating the decisions below insofar as they rest on the First Amendment or Equal Protection and remanding for consideration of the whether the challenged maps violate Article I’s responsiveness principle because they improperly insulate incumbents from electoral competition.  On remand, the courts below can consider whether there is adequate evidence already in the record to conduct this Article I inquiry and, if not, whether it would be appropriate procedurally to reopen the record for this purpose.

One Theory or Several?

by

The answer, surprisingly, may end up “several,” with no single constitutional theory solving the problem of gerrymandering comprehensively.

Much of the coverage of yesterday’s oral argument in Benesik v. Lamone, the case of congressional gerrymandering in Maryland, noted the apparent uncertainty among the Justices over the various theories that have been propounded in this case, among others, on why extreme gerrymandering might violate the federal Constitution.  Referencing the Wisconsin case argued last November, as well as the North Carolina case that has arrived at the Court more recently, Justice Breyer wondered whether it would be wise to have all three argued together simultaneously, so that the theories raised in each – including those in amicus briefs – could all be compared against each other. (Page 26-27 of the transcript.) The idea seemed to be that the one best theory might emerge from this intellectual free-for-all.

But what if the Constitution’s relationship to the problem of partisan gerrymandering doesn’t work in a holistically unified way?  What if there are multiple provisions in the actual text of the existing Constitution that bear on the problem to some extent, each relating imperfectly to the phenomenon of partisan gerrymandering in its own implicit and rather indirect way?

The Court has struggled for so long with the issue of partisan gerrymandering (and has come up empty each time it has tried to identify a workable theory for tackling the issue), that the assumption has been that there is either one workable theory or none at all.  It couldn’t possibly be the case after all these years—could it?—that there are actually multiple judicially manageable ways to identify an egregious partisan gerrymander as violating the federal Constitution?

But there are reasons to be skeptical, at least early in the stages of the intellectual inquiry, that there would be a single “grand unified theory of partisan gerrymandering” under the U.S. Constitution.  For one thing, there is no one clause of the Constitution that explicitly identifies gerrymandering as a practice that is unconstitutional.  (If there were, the Court’s obligation to enforce that prohibition would be much more directly straightforward under Marbury v. Madison, as I’ve discussed elsewhere.)  Instead, if partisan gerrymandering is to be unconstitutional, and to be judicially invalidated as such, it inevitably is going to be because of an inference of how some constitutional provision implicitly pertains to the problem of partisan gerrymandering even though that provision does not say anything explicit about the practice.  But once we are in the realm of inferences and implications, there is immediately the possibility that multiple constitutional clauses—not just one—have such implications and potentially warrant such inferences.  Equal Protection, Freedom of Speech, Due Process, Biennial Elections of Members Chosen by the People—all of these clauses possibly or arguably bear in some way on the concededly pernicious practice of gerrymandering, but they all do (if they do) inexplicitly and indirectly.

Also, the idea that multiple clauses of the Constitution might bear upon a certain kind of practice is hardly unusual.  State laws that are economically protectionist in nature, for example, potentially raise issues under the Commerce Clause, the Privileges & Immunities Clause (of Article IV), and sometimes even the Equal Protection Clause.  Furthermore, although it’s been a long time that I’ve practiced law in the area of criminal procedure, my recollection is that challenges to the composition of a jury can occur under both the Sixth Amendment as well as Equal Protection (and potentially maybe also Due Process).  Likewise, challenges to police interrogation practices can occur under the Fifth and Sixth Amendments (and maybe other constitutional combinations, including the Fourth Amendment, at least insofar as Miranda warnings prophylactically protect multiple constitutional rights).

Overlapping constitutional clauses, and jurisprudential doctrines flowing from those clauses, can lead to situations that (at least metaphorically) look like Venn diagrams, in which some fact patterns are covered by several clauses, some by only one clause, and some by none.  It is at least theoretically possible that something like this might apply to the problem of partisan gerrymandering.  And the availability of new statistical techniques at least raises the question whether some theories that would not have been judicially manageable in the past might now indeed have become so, because measurement and line-drawing is now possible in a way that previously was infeasible.

How is the Court best to proceed given that several approaches, rather than just one, might now be available? It is certainly tempting to think of the Court, as Justice Breyer suggested, gathering all of the pending cases and deciding them all at the same time, so that the federal constitutional law applicable to partisan gerrymandering can be as coherent and well-organized as possible.  But even if the Court were to do this, there will be other partisan gerrymandering cases in the future that might present new theories not encompassed by the pending trilogy of the Wisconsin, Maryland, and North Carolina cases.  At yesterday’s oral argument, for example, Chief Justice Roberts asked, “Is it appropriate in a case like this to look at what the district looks like in terms of the boundaries and the extent to which it complies with traditional redistricting criteria?”  (Page 48 of the transcript.) This question dovetails with some recent scholarship (including, in the interest of full disclosure, some of my own), exploring whether a federal constitutional claim can be premised on a showing of a gerrymandered district as distorted as the original Gerrymander of 1812.  But none of three cases in the pending trilogy frames a federal constitutional claim in that particular way, and so no matter how the Court rules in those three cases it would not resolve definitively the validity (or not) of this alternative distortion-focused approach.

Under Marbury v. Madison, for better or worse, the Court’s role is limited to deciding constitutional questions that come before it in properly presented cases within its jurisdiction.  The Court has no power to issue advisory opinions; that was settled long ago.  Consequently, the Court cannot observe the phenomenon of partisan gerrymandering in society and opine, in the way professors can, about whether that phenomenon is unconstitutional and why.  The Court can only resolve the specific claims that come before it in specific cases.

Thus, it might be that the specific claim in Wisconsin fails because of a technical “standing” defect, depriving the Court of jurisdiction over the claim on the merits, that was not apparent at the outset of the lawsuit.  Tough luck, but it would mean that Wisconsin case is not a proper vehicle for addressing the merits of whether the plaintiffs’ claim, premised in large part, on the “efficiency gap” metric is valid.  Likewise, it may be that the Maryland case is procedurally defective for addressing the merits of the plaintiffs’ “retaliation” theory under the First Amendment because it arises now in the context of motion for a preliminary injunction, and that motion is inappropriate for reasons of timing (as was explored by several Justices at yesterday’s argument).  If those two cases fall by the wayside in that way, then the next inquiry would be whether the North Carolina case properly presents a claim on the merits for the Court to resolve under Marbury v. Madison.  But the Court’s consideration of the issue would be confined to the record and arguments in the North Carolina case.  It necessarily would not extend to future facts or theories that might be developed down the road in new cases, especially those that might arise after the 2020 round of redistricting.

There are those who see the current circumstances as a “now or never” moment in the history of federal constitutional law as it concerns partisan gerrymanders.  I understand that sentiment, given Justice Kennedy’s perceived status as the “swing vote” on this issue and the speculation that he might step down from the bench sooner rather than later.  But I think focusing solely on the current circumstances is too short-sighted.  A 5-4 ruling this year easily could be overruled 5-4 the opposite way just a few years down the road.  (See Citizens United v. FEC, overruling McConnell v. FEC.)  The challenge for the Court is to craft durable precedents on the problem of partisan gerrymandering that will command respect on the Court from one decade to next, as the federal judiciary inevitably confronts constitutional challenges to each new round of redistricting.

The problem of partisan gerrymandering is not going away, and that is true no matter how the Court decides any of these cases.  At most the federal Constitution, properly construed, constrains extreme gerrymanders.  It does not require perfectly fair redistricting.  For that, Congress (with respect to congressional elections) or the states would have to establish genuinely nonpartisan redistricting commissions (and they would have to operate in genuinely nonpartisan fashion).  The judicial role in policing extreme gerrymanders, moreover, would need to be sensitive to the obligation of the judiciary to refrain from micromanaging the decennial task of redistricting or intruding excessively in what inevitably must remain a domain dominated by partisan politics.

Partisan gerrymandering will be a problem, for American democracy as well as American constitutional law, for as long as the Constitution itself remains textually silent on the topic of gerrymandering.  The recurring—and genuinely difficult—challenge is how to apply the document originally drafted in 1787, which says nothing explicit on how political “factions” might inappropriately manipulate legislative lines, to an evolving practice of democratic governance, which over two centuries later has well-developed political parties (in a way not entirely anticipated by the Founding concept of “factions”), and unforeseen technological developments that permitted the sophisticated manipulation of district lines far more systematically—and thus far more destructively to republican self-government—than what Elbridge Gerry and his fellow partisans in the Founding Era could have contemplated.

Confronting this challenge requires what Richard Fallon, in his superb new book Law and Legitimacy in the Supreme Court, calls the exercise of “reflective equilibrium” as applied to task of constitutional adjudication.  “Reflective equilibrium” requires moving back and forth between reasoning about the implications of general constitutional principles, on the one hand, and intuitions about the proper outcome of specific fact patterns, on the other.  With respect to the problem of partisan gerrymandering, “reflective equilibrium” means thinking systematically about the First Amendment, Federalism, Judicial Restraint, and so forth, and the relationship of those general principles to the evidentiary records established in the Wisconsin, Maryland, North Carolina, and potentially other cases.  “Reflective equilibrium” is characterized by its back-and-forth, seesawing nature.  It is not a linear, deductive process.  A Justice easily could think, “this gerrymandered district (or map) must be unconstitutional; it’s so egregious.”  Justice Kagan said something like that with respect to the Maryland case yesterday.  (See page 39 of the transcript.)  But how to fit that intuition about the specific facts to general constitutional principles?  Well, that requires moving back and forth between those principles and the specific facts, until (one hopes) one reaches “reflective equilibrium”.

But it’s a messy process, made more so by the fact that there may not be a single “reflective equilibrium” point to reach.  Instead, there may be the need for multiple “reflective equilibrium” points, one for each gerrymandering case on the Court’s docket.  The Wisconsin case calls for balancing the general theoretical claims and points raised there against intuitions about the specific facts developed in that case’s specific record.  Likewise, the Maryland case involves somewhat different general theoretical principles, because of how the plaintiffs there have chosen to litigate their case (as is their right to do), to be considered in relationship to the specific facts on the ground in Maryland, as established in the record there.  And so on, and so forth.

Constitutional law inevitably has a dynamic quality, as Fallon explained in another one of his great books.  It never can be permanently fixed at any given moment in time.  This point certainly applies to partisan gerrymandering.  Thus, no matter what the Court says in the Wisconsin and Maryland cases, don’t expect those opinions to be the last word one way or the other.  The North Carolina case will need resolution no matter what, and it presents a different combination of facts and theories than the other two.  And, most assuredly, there will be further cases down the road.

To be sure, in the system of judicial precedent that characterizes adjudication in the Supreme Court, each case matters for the next.  What the Court says in the Wisconsin and Maryland cases will be important, more or less so depending on how broadly or narrowly their rulings there—and especially whether those cases ultimately are disposed of on procedural grounds without reaching the merits.  But what will be the federal constitutional law of partisan gerrymandering in 2021 and 2022, when the next round of redistricting cases arise?  The answer to that question can be shaped, but not definitively settled, by decisions that occur in 2018 and 2019.

And the answer may end up being that not just one, but several different, constitutional clauses and principles constrain various forms of especially extreme partisan gerrymanders—although no single constitutional theory solves the problem of gerrymandering comprehensively.

Of X-Rays, CT Scans, and Gerrymanders

by

Progress in the detection of malignant redistricting.

I’m not a doctor, but I think this analogy is sound, and all the more so after today’s oral argument in Gill v. Whitford, the Wisconsin redistricting case in the Supreme Court.

Think of a disease that was undetectable before the development of medical imaging technologies, a type of brain tumor perhaps. It is still very much a disease even if undetectable.

After years of frustration, along comes the invention of a breakthrough medical technology that for the first time permits the detection of some of these tumors.  X-rays didn’t use to exist, but now they can be used to spot some malignant tumors.  And for a while, the only available imaging technology is an x-ray.

But then CT scans are invented, and MRIs.  They are improved forms of imagining, able to detect tumors more accurately than x-rays.  The disease is the same; just the way to detect the presence of the disease has improved.

I would suggest that in 2004, when the Supreme Court decided Vieth v. Jubelirer, not even the equivalent of x-rays existed to detect a malignant gerrymander.  The absence of appropriate detection techniques did not mean that gerrymanders were not a cancer on democracy.  On the contrary, all the Justices on the Court at the time recognized that they were.  There just was not an available tool by which to identify when redistricting had become pathological.

After Vieth, social scientists invented a new detection technology, called the “efficiency gap,” and used it to identify the pathology of Wisconsin’s redistricting map at issue in Gill.  The efficiency gap is far from a perfect detection device; that much is clear from the district court’s trial in Gill as well as various social science commentaries on efficiency gap’s technical properties.  It is like x-rays in this respect; imperfect, but still capable of detecting disease in some circumstances.

Since the development of the “efficiency gap,” social scientists have been hard at work on creating improved detection devices. The mean-median test, for example, and computer simulations.  These might be considered the CT scans and MRIs in the field of redistricting.  There has been incredibly rapid progress in this field, maybe even more rapid than with medical imaging. In both fields, there are likely to be even better techniques in future.  Still, all the while the definition of the disease to be detected remains constant.

What struck me from reading the transcript of today’s oral argument were two points. First, there remains virtually no dispute about the nature of the disease.  As the two attorneys defending Wisconsin’s map both conceded, if there were no issue of detection involved—if the malignant cancer were on the surface of the body politic, so to speak—there would be no doubt about its unconstitutionality.  In response to Justice Kennedy’s question (page 26) about an explicit state rule “that’s saying all legitimate factors must be used in a way to favor party X or party Y,” the Wisconsin legislature’s lawyer (page 27) said “Yes.  It would be unconstitutional,” and the state’s Solicitor General agreed (page 63).  Thus, the only issue is whether the current status of available detection devices permits identification of malignancies that are not on the surface in the same way.

Which leads to the second point about the oral argument.

There was considerable use of the term “outlier” to define a gerrymander that would be subject to judicial invalidation.  Justice Breyer (page 12) included the concept as a key component of his effort to articulate a judicially workable test: after identifying whether a map drawn by a partisan legislature was demonstrably skewed against a party, the trial court would ask: “is this an extreme outlier with respect to asymmetry?” Justice Kagan (page 49) asked the plaintiffs’ attorney: “Mr. Smith, are you suggesting that we should be looking for outliers or are you suggesting that we should be trying to filter out all manner of partisan consideration, or is it some place in between?” Mr. Smith’s response (page 50): “Your Honor, the word ‘outlier’ is probably an appropriate one.” Then, confirming this initial thought, he added: “Certainly, we don’t think … that all partisanship is unconstitutional.  What you need is a method by which the extreme gerrymander . . . can be identified and held unconstitutional.”

This focus on the concept of an “outlier” map seems to me important with respect to both understanding the relevant constitutional standard for judges to enforce as well as developing the measurement technique used to enforce the standard.  The very word “outlier” entails a distinction between norm and deviation.  That distinction makes sense in terms of the role that partisan politics is entitled to play in the redistricting process.  Normal partisanship is routine and constitutionally unobjectionable.  It poses no First Amendment problem.  It is a symptom of healthy, competitive democratic contestation between political parties in a free society governed by First Amendment values.  But just as normal cell growth in a human body can turn malignant, so too can normal partisan contestation metastasize into malignant gerrymandering.  The constitutional value at stake, rooted in First Amendment freedom, is to protect the norm from this kind of malignant deviation.

This basic conceptual distinction between norm and outlier serves to answer a major question raised by Chief Justice Roberts (and echoed by others, including Justice Gorsuch).  “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG [efficiency gap] was greater than 7 percent,” the Chief Justice observed. (Page 38.)  Then, he added, crucially: “That doesn’t sound like language in the Constitution.” His concern, obviously, is with the apparent arbitrariness of such an efficiency gap cutoff and, most significantly, how to link that cutoff with a governing constitutional principle.  His concern, it must be noted, is one reason why the efficiency gap is just an early-generation detection technique, like an x-ray, most likely to be superseded by the rapid development of improved detection techniques.

To answer the Chief Justice’s question, the judicial task—as required by First Amendment principles—is to distinguish between, on the one hand, normal partisan redistricting that is reflective of healthy democratic competition from, on the other hand, the pathology of extreme gerrymandering by which one party has subverted the electoral competition between differing political ideas.  That judicial task does not require identifying a cutoff in terms of an amount of partisan asymmetry in a map.  Instead, it requires identifying a map that is outside the norm of politically plausible maps for a given state.

How then to identify whether or not a map is an outlier in this way?  That is where the development of the latest detection techniques is relevant, and some of these advances have been made even after the trial of Gill itself. Without delving into all the technical details here, these latest developments use increased computing power to build upon a basic statistical insight, that of a so-called “normal distribution” in which a random sample of data will tend to cluster around a mean, the shape of a familiar “bell curve,” with the norm being the area under the curve, and the outliers being the two “tails” of the curve.  This technique can be used to detect whether a state’s actual map is within the norm, or instead is an outlier in the tail of the distribution.  This inquiry is not arbitrary in the way that a 7 percent cutoff in an efficiency gap score arguably is; rather, it is directly tied to the First Amendment distinction between norm and deviation in the operation of healthy partisan contestation.

As I’ve discussed previously, one of the amicus briefs in Gill that most lucidly elucidates the statistical ideas of norm and outlier was submitted by Eric Lander, a molecular biologist and founding director of the Broad Institute at MIT and Harvard.  It is noteworthy that this Lander brief was mentioned twice in today’s oral argument: once by Justice Breyer (page 12) as part of his invocation of the outlier concept; and the other time by the plaintiffs’ attorney, Paul Smith (page 56), agreeing that its distinction between norm and outlier will become central to the constitutional inquiry: “I think it will become part of how these cases are decided.”

When I first read the Lander brief, I thought it somewhat surprising that the most significant amicus brief, of the multitude submitted, might have been by a molecular biologist, rather than by someone specializing in politics.  But since it turns out that the task here is to distinguish between healthy and malignant redistricting, so that the cancer of extreme gerrymandering does not destroy the body politic, perhaps it is not surprising after all.

The Oral Argument in the Gerrymandering Case: Questions That Could Matter

by

Gill v. Whitford looks to be a case for which oral argument might make a difference.

It is often said that oral arguments rarely make a difference to the outcome of a Supreme Court case, that the Justices’ minds are essentially made up before oral argument begins.

But Gill v. Whitford, the blockbuster partisan gerrymandering case from Wisconsin, looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.

There are two reasons for this.   First, Justice Kennedy—whose vote is widely understood as crucial to determining whether or not the Constitution is interpreted as containing a judicially enforceable constraint on the deliberately partisan manipulation of legislative districts—has made clear from his own previous opinions on the topic that he is genuinely torn between two opposing views: on the one hand, the need to identify some such constraint; and on the other, the inability to do so thus far. Even if Justice Kennedy goes into Tuesday’s oral argument tentatively leaning towards one side or the other (having read all the briefs filed in the case), there is a significant possibility that what is said during the argument could push him back in the opposite direction.   There is little doubt that even now, so far into the litigation of this issue, Justice Kennedy is still very much open to persuasion on this issue. It is, of course, the task of the Supreme Court advocate to be persuasive when and where the opportunity exists, and there may be moments in Tuesday’s argument—in responding to one of Justice Kennedy’s questions, or even one of another Justice’s—when the advocate can make a point that either dislodges a previous expectation based on the reading of the briefs or instead solidifies a tentative understanding.

The second reason is that, even after all the briefs (or maybe because of all of them), there is still much uncertain and unsettled about the litigation of monumental lawsuit and thus important points that the oral argument can clarify or pin down in ways that might be helpful to one side or the other. For example, how important is the so-called “standing” issue, upon which the state of Wisconsin places much emphasis in its briefs, but which received relatively less attention in the district court (and virtually no discussion in the media’s consideration of the case)? In other words, could this particular lawsuit fail not because of an invalid theory on the merits of the claim, but because the plaintiffs did not identify specific districts that were harmed as a result of the statewide gerrymander (and thus did not attempt to link specific plaintiffs with a district-specific injury, even if the unconstitutionality of the gerrymander had a statewide character)?

Another point of uncertainty concerns the relationship between (1) the degree to which a redistricting map is skewed in favor of one political party and (2) possible permissible explanations for that skew, like longstanding geographic and demographic circumstances that cause (for example) Democrats to cluster in cities while Republicans are more dispersed in exurban areas. If a state legislature under control of one political party draws a map with a significant skew in that party’s favor, is the state then obligated to show that it was unable to achieve its permissible redistricting objectives with any less of a skew? In its briefs, the state seems to understand the district court (and the plaintiffs) as having adopted this position, which would amount to something like a “necessity” or “least restrictive alternative” analysis in other areas of constitutional law (typically those subject to the so-called “strict scrutiny” standard of judicial review). For example, on page 14 of its reply brief, the state defines the relevant portion of plaintiffs’ test this way: “was it impossible for the Legislature to draw a map that scored better, while still complying with other requirements?” And again, continuing on to the very next page of the same reply brief, the state repeats: “Plaintiffs define their third element as whether ‘alternative district maps’ could have been drafted that have less partisan symmetry on some metric, while still complying with traditional redistricting principles and other requirements.”

But maybe the state’s understanding of this point is incorrect and, instead, the district court (and the plaintiffs) set forth a position that operates more like a “reasonable relationship” test that is also familiar in other areas of constitutional law (those governed by a lower standard of judicial review than “strict scrutiny”)? In other words, on this view a state’s map would be constitutionally valid, even if skewed in favor of the party that drew the map (and intentionally so), as long as the map bore some “reasonable relationship” to permissible redistricting criteria; there would be no constitutional requirement of being the least skewed map that satisfies those permissible criteria. So, which of these two different understandings of the district court’s (and plaintiff’s) position is correct? Is a remand necessary, or unnecessary, to clarify this important point? These questions are ones for which Tuesday’s oral argument potentially could be extremely significant.

Related to this uncertainty about the appropriate legal standard for when “geography justifies skew” (to put the point colloquially and somewhat over-simplistically) is the nature of the relevant evidence concerning this particular legal issue. There is much discussion, especially among multiple amicus briefs, concerning the possibility of using computer simulations to identify a distribution of possible maps that conform to the state’s permissible redistricting criteria. This distribution then can be used to determine whether the state’s actual map has a degree of partisan skew that is, or is not, an outlier compared to other possible maps compliant with the state’s permissible criteria. (I have previously discussed this statistical approach and the amicus briefs that emphasize them.)

But questions remain about the relationship of this kind of statistical evidence and this specific lawsuit over this particular Wisconsin map. Was any such statistical evidence based on computer simulations introduced in the district court’s trial of this case and, if not, what is the consequence? Is it part of a plaintiff’s burden in challenging a redistrict map as a partisan gerrymander, according to the appropriate constitutional standard to be identified in this litigation, to provide statistical evidence of this nature—in order to demonstrate the state’s map to be an outlier in its degree of partisan skew (compared, again, to a myriad of other possible maps that would achieve all of the state’s permissible redistricting goals at least as well or better)? Or is the state obligated to provide statistical evidence showing that its map is not such an outlier, at least if a plaintiff is able to present a prima facie case (using other types of evidence) that the state’s map has a significant partisan skew that is both intentional and unwarranted? Is a remand required for further consideration of how this particular type of statistical evidence should bear upon an evaluation of this particular map’s constitutionality?

These are just some of the many questions that could be raised in Tuesday’s oral argument and, depending upon how they are handled by the advocates on both sides, potentially could make a difference in the Court’s disposition of the pending appeal.

If I myself had the opportunity to frame a question for each side, here’s what it would be:

For the state: do you accept the premise, as accepted by all the opinions in Vieth, that an extreme partisan gerrymander is unconstitutional in principle, the obstacle simply being the ability to distinguish in practice extreme partisanship from run-of-the-mill partisanship, which is inevitably acceptable; and if you accept this premise, then if new statistical techniques do in fact enable us to distinguish extreme from run-of-the-mill partisanship in a way that we could not before, must you necessarily concede that the constitutional question is justiciable, with the only remaining inquiry being whether your map is or is not extreme according to the new statistical technique?

For the plaintiffs: to what extent is the district court’s position, and the position that you are advocating in this Court, the same or different from the position of some of your amici who appear to advocate an “outlier” test based on a statistical technique using computer simulations; insofar as the positions are different, what is this Court supposed to do with this particular case at this stage of the lawsuit (assuming we find the amici persuasive on this point); and if there is no difference, why is there so much discussion about the possibility of using these types of computer simulations and the role they can and should play in litigation of partisan gerrymandering claims?

We will soon know what questions the Justices actually ask, see how the advocates respond to them, and have at least an initial impression of how effective these responses appear—especially in their effort to convince Justice Kennedy one way or the other. And maybe there will even be something of a surprise: like the possibility that another Justice, like Chief Justice Roberts, might appear open to persuasion (on something like an “extreme outlier” test, for example) in a way that had not been previously anticipated.

The Missing Link in Gerrymandering Jurisprudence

by

The key advance is the ability to identify whether a redistricting map is an extreme outlier in the degree of its partisan bias.

The key advance is the ability to identify whether a redistricting map is not merely biased against a political party but whether it is an extreme outlier in the degree of its partisan bias relative to other maps that might have been drawn to achieve the mapmaker’s permissible redistricting objectives.

The difficulty up to now, in framing a constitutional challenge to partisan gerrymandering, has been one of linking together two necessary components of a complete claim.  One component is the metric for identifying when a redistricting map deviates from impartial fairness to the competing political parties.  The other component is the standard for determining when a partisan motive for drawing the particular district lines runs afoul of a federal constitutional requirement.

As a policy matter, it is easy to establish a metric for identifying redistricting maps that deviate from neutrality between the parties.  Indeed, as political scientists and statisticians frequently explain, as they do in multiple amicus briefs submitted to the Supreme Court in Gill v. Whitford, the pending case from Wisconsin, there is no shortage of such metrics.  One such metric is the so-called “mean-median difference” (or, as some prefer, “average-median difference”). This metric measures a party’s share of the vote each district in the map and, listing the districts in order of the party’s vote share from largest to smallest, the compares the party’s vote in the median district—the district that is the midpoint of the list—with the party’s share of the vote across the entire map (which is the same as the party’s share of the vote in an “average” district, controlling for different turnout rates across districts).  To the extent that the party’s share in the median district is smaller than the party’s overall (or average) share, the map is structurally biased against the party.

To consider an extremely simple example: suppose there are five districts, each with 20 voters, for a total of 100 voters.  Suppose these 100 voters split 60%-40% between Party A and Party B, but the district-specific splits are:

A     B

1      20     0

2      20     0

3        8    12

4        8    12

5        4    16

District 3 is the median district, and Party A’s share of the vote in that district is only 40% (8 of 20 votes cast), whereas Party A’s overall vote share is 60% (60 out of 100, or an average of 15 votes across the five 20-voter districts).  This difference between 40% and 60% measures the map’s structural bias against Party A.  Thus, measuring a map’s deviation from neutrality just straightforward arithmetic—as Princeton mathematician Sam Wang is eager to emphasize.

But what does this arithmetical observation have to do with federal constitutional law?  It is easy to argue, as a policy matter, that a redistricting map is undesirable insofar as it exhibits this kind of bias against either of the two major political parties that compete head-to-head in legislative elections in order to win governing control in the legislature.  A fair map would harbor no such bias (at least not long-term, in election after election).  But the federal Constitution contains no explicit requirement that legislative maps be neutral with respect to   the competing political parties.  Indeed, the most important electoral feature of the federal Constitution—the Electoral College system for presidential elections—egregiously deviates from any such conception of partisan neutrality, as the result in 2016 most recently demonstrates.  (Hillary Clinton’s share of votes in the median state—and states are districts for Electoral College purposes—was far below her vote share overall or in an “average” state.)

Thus, measuring a map’s partisan bias is easy.  The difficulty is linking this measurement to constitutional law.

We can come at the linkage problem from the other direction.   There is no doubt that an extreme partisan gerrymander violates the Constitution.  As Justice Kennedy vividly put it in his Vieth concurrence: “If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,’ we would surely conclude the Constitution had been violated.”  The problem, however, has been how to tell when a partisan gerrymander that is not so explicitly blatant contravenes constitutional law.  This problem is compounded the Court’s previous pronouncements that some degree of partisanship in the drawing of district lines is constitutionally permissible.  When the mapmaker does not expressly announce a desire to go “too far” in a partisan direction, how is the judiciary to determine from the map itself whether it reflects an excessive degree of partisanship?

In short, the constitutional principle is clear: egregious partisan gerrymandering violates the First Amendment right of political parties to participate in politics free from government efforts to suppress that political participation.  The challenge is how to measure a partisan gerrymander that is egregious rather than merely routine partisan tinkering with district lines.

The difficulty, again, is one of linkage.  Measuring partisan bias, independent from constitutional principle, is easy.  Articulating the constitutional principle, independent from measurement, is straightforward.  It is the marriage of principle and measurement that has proved elusive.

Until now.

As Justice Kennedy also anticipated, the increasing power of computer technology has enabled the development of new statistical techniques that can identify whether a redistricting map is an outlier compared to all possible maps that would achieve a mapmaker’s constitutionally permissible objectives, including compactness and respect for existing political subdivisions.  A computer can do this by drawing thousands, even millions, of alternative maps, all of which are constrained by the stipulated set of constitutionally permissible criteria, and then the computer can measure the degree of partisan bias for each of these alternative maps using the same voting data applicable to the actual map under consideration.  For example, the computer could calculate the mean-median difference for each of these alternative maps.  (In other words, the computer could measure for each possible map the extent to which a party’s vote share in the median district diverges from the party’s overall, or average, vote share.)

Crucially, the key metric is not the absolute value of mean-median difference for the actual map, or how much this difference deviates from the ideal of zero, the score of a perfectly neutral map.  Instead, the key metric is where the mean-median score of the actual map falls within the distribution of mean-median scores of all the alternative maps that the computer is able to draw.  If the score for the actual map falls outside the normal range of scores for all these maps—falls, in other words, along the tails of the distributional curve—then the actual map is an outlier in terms of the degree of its partisan bias.

The distributional approach of this statistical technique, it is important to understand, does not judge—even indirectly—an actual map with respect to a standard of perfect neutrality.  In a given state, it might well be the case that the normal distribution of possible maps drawn by the computer does not center on maps with mean-median scores of zero.  Instead, geographic factors applicable to the particular state might cause the typical map drawn by the computer (in other words, the mode of the computer’s distribution of maps) to have a mean-median score disadvantageous to one political party.  This could occur, for example, if one party’s voters are geographically clustered in tight political subdivisions, while the opposing party’s voters are more advantageously dispersed throughout the state.  All the maps generated by the computer would reflect this natural geographical advantage of one political party.  Still, the process of generating these alternative maps would determine whether or not the actual map was an outlier even with respect to this natural geographical advantage, or instead fell within the normal range of partisan bias given this natural geographical advantage.

Thus, this new computer-assisted statistical approach can be used to identify what the constitutional principle was looking for: an egregious partisan gerrymander.  Strictly defined, and precisely measured, an egregious partisan gerrymander is one that is identified as an outlier using this new computer-generated statistical technique.

Several amicus briefs in Gill invoke this new statistical technique as the method for enabling the Court to articulate a judicially manageable standard to identify unconstitutional gerrymanders.  One brief that discusses the technique in particular detail—and does so lucidly—is submitted on behalf of Eric Lander, the President of the Broad Institute of Harvard and MIT.  The ACLU’s brief, in turn, does an effective job linking the statistical technique to the First Amendment’s requirement that the government regulate political competition between parties without improperly giving one party an excessive competitive advantage.

For Justices on the Court who are historically minded in their overall constitutional jurisprudence, and who thus wish to ground the constitutional analysis of partisan gerrymandering on relevant historical considerations, the new computer-generated statistical technique also can be linked to a history-based approach.  How so? First, the relevant history demonstrates that the original Gerry-mander of 1812—along with all partisan manipulations of legislative maps that are similarly egregious—has been regularly and vigorously condemned as inconsistent with the fundamental principles of popular sovereignty established in the original Constitution and reaffirmed in the Fourteenth Amendment.  Indeed, throughout the nineteenth century, the very practitioners of these egregious partisan gerrymanders recognized that they were acting contrary to constitutional principles, but the pressure of partisan politics prevented them from adhering to the Constitution as they knew they should.  This point is made effectively in an amicus brief submitted by a group of distinguished historians, and it is also emphasized in my own recent scholarship.

Second, the unconstitutionality of the original Gerry-mander can generate a judicially manageable test for evaluating modern redistricting maps in two ways.  The first way, which I have explored in a contribution to a William & Mary Law Review redistricting symposium, is more direct.  It measures the degree to which the original Gerry-mander was a distortion of district lines, and requires a mapmaker to justify any new map that is equivalently or even more distorted.  The other way is more indirect.  It identifies the original Gerry-mander as the archetype of egregiously partisan districting and, in condemning the archetype itself as quintessentially unconstitutional, necessarily also condemns as unconstitutional the whole class of egregiously partisan gerrymanders of which the original Gerry-mander is the archetype.  The way to measure whether a redistricting map is egregiously partisan, apart from having districts as distorted as the original Gerry-mander, is to determine whether it is an outlier according to the new computer-generated statistical technique.

Using the statistical technique in this way is consistent with what I have termed “particularistic,” rather than “universalistic” reasoning in constitutional cases.  (In my William & Mary contribution, I explain how particularistic reasoning lends itself to historically-oriented constitutional analysis, whereas universalistic reasoning lends itself to more philosophically-oriented approaches to constitutional interpretation.)  One of the best examples of particularistic reasoning in Supreme Court jurisprudence is the invocation of the Sedition Act of 1798 as the basis for holding that the First Amendment constrains a state’s use of its libel law to suppress criticism of government officials.  But this exercise of particularistic reasoning did not yield the conclusion that only state laws that are exactly congruent with the Sedition Act of 1798 are unconstitutional.  Instead, the Court appropriately identified the Sedition Act as the archetype of a larger class of laws comparably suppressive of political dissent and thus necessarily comparably unconstitutional.   Once the archetype was determined to be unconstitutional—because it had been deemed so “in the court of history”—that constitutional determination was an anchor, and it became necessary for the Court to craft a contemporary doctrine for which the archetypal determination served as a foundation but which treated the entire relevant class of politically suppressive laws in a coherent and principled way.

So too with respect to the archetype of the original Gerry-mander.  Its unconstitutionality is established in the “court of history,” but that determination simply generates the necessity of crafting the contemporary doctrine that renders unconstitutional all comparably egregious partisan gerrymanders.  The new computer-generated statistical technique can identify the outliers that form the class of egregiously partisan maps that are unconstitutional according to the principle derived from the archetype.

Thus, the new statistical technique can provide the missing link between principle and measurement that heretofore has been so elusive.  Whether grounded in historical analysis, by focusing on the archetype of the original Gerry-mander, or instead rooted in reasoning philosophically based on general First Amendment principles (as the ACLU brief does), it is possible to articulate the relevant constitutional principle as the prohibition of egregious partisan gerrymanders, not the purging of all partisanship from redistricting.  Once this principle is articulated, the new statistical technique can be employed to determine whether the map under review is an outlier relative to all possible maps that might be drawn to achieve the map’s constitutionally permissible redistricting goals.  If the map is indeed an outlier, and if the mapmaker cannot justify it as appropriate despite its outlier status, then the map should be condemned as inconsistent with the fundamental constitutional principle at stake.

In this way, the missing link finally has been found.

The Constitution Needed a Judicial Assist

by

“The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animating principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

Roberts undoubtedly is correct that the much more straightforward reading of the term “Legislature” is to say that it means the institutional entity that consists of representative lawmakers elected by the citizenry, rather than to encompass the citizenry itself when it engages in a direct lawmaking capacity through the device of a referendum or ballot initiative. This more straightforward reading, as Roberts points out, sits more easily with other uses of the term “Legislature” in the U.S. Constitution, most especially the provision—subsequently superseded by the Seventeenth Amendment—that gave the power to elect U.S. Senators to the “Legislature” of each state, rather than to the citizenry.

But this straightforward reading would have the pernicious consequence of prohibiting the states from attempting to curb the evil of partisan gerrymanders by taking the power to draw congressional districts away from state legislatures and putting this power instead in the hands of independent redistricting commissions designed to be nonpartisan. As today’s opinion for the Court (written by Justice Ginsburg) observed on its very first page,       partisan gerrymandering has no legitimate defense in a democracy; it’s only a question of what means are available under the Constitution to combat it.

Chief Justice Roberts (for himself and the three other dissenters) acknowledged the evil of partisan gerrymandering, but did not believe that distorting the language of the U.S. Constitution was justified by the desire to let states use independent commissions for congressional redistricting. Roberts pointed to amending the U.S. Constitution as the way to give the states this power, just as the Seventeenth Amendment was added to provide for direct election of U.S. Senators.

The problem with the Chief Justice’s argument on this point is the extreme difficulty of amending the U.S. Constitution. Roberts himself (on his own first page) noted how long and arduous the process was to achieve the adoption of the Seventeenth Amendment, with success finally coming in the Progressive Era. If anything, American politics has become even more sclerotic, making it virtually impossible to achieve a constitutional amendment even when the American people persistently and overwhelmingly want it. The Electoral College is a case in point; the American people for decades, by large majorities, have wanted to replace it with direct election of the president, but have been unable to achieve this strong and persistent preference through the means of constitutional amendment.

Roberts observed that some provisions of our eighteenth-century Constitution are fixed in their meaning, until amended, even if these provisions are undemocratic. We cannot elect “a 25-year-old Senator, or a foreign President” even if we want to, given explicit clauses in the Constitution to the contrary (dissent at 25 n. 6).

True, but those other clauses are constitutional “straightjackets” providing no interpretative wiggle-room whatsoever. The word “Legislature,” even though its much more natural reading is to refer to the institutional body of elected representatives, has some wiggle-room in it. It can be construed to mean whatever authority enacts the laws of a state, including the state’s citizenry when it undertakes the lawmaking authority directly.

Thus, the question in the case boils down to whether the Court was justified in using that little bit of wiggle-room to achieve its desired result.

The Court’s opinion was unusually candid in the results-oriented nature of its reasoning. “We resist reading the Elections Clause to single out federal elections as the one area in which the States may not use citizen initiatives as an alternate legislative process,” the Court said (at page 28). Elsewhere (at 31), the Court added that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause to exclude lawmaking by the people.”

In other contexts, it might make sense to be wary of judicial manipulation of constitutional text to achieve a “policy” goal (as Roberts pejoratively put it). But here what is to be gained by insisting upon a literal reading of the term “Legislature”? Vindicating the particular method of constitutional amendment set forth in Article V of the original document?

The Constitution sets forth a plan for a “republican form of government,” to use the phraseology favored by the Framers. That plan has been remarkably successful in many respects over the life of the nation. But that plan has also been short-sighted in other aspects—notably, again, the Electoral College, which never worked as intended and which James Madison himself (a principal drafter of the original Constitution) recognized needed replacement in the 1820s.

The particular procedures for constitutional amendment set forth in Article V have never been among the document’s strongest features. Yes, they prevent altering the fundamental charter too hastily or easily. But they also impede constitutional adjustments whose time is far overdue. The Framers did not perfectly calibrate the balance between making textual changes to the document too easy or too difficult.

When the electorate itself is divided among reasonable arguments concerning whether the Constitution should be read (or amended) to achieve a particular policy result, there is a strong case to be made for the U.S. Supreme Court staying out of the policy debate by siding with whatever the more straightforward reading of the existing Constitution entails—even when doing so consigns one side of the policy battle to the uphill challenge of amending the text using the procedures of Article V. But when there is no such divide on the relevant policy matter, then there is no good reason to defend literalism for the sake of literalism—or to make achievement of the policy objective so much harder by forcing it to resort to the high hurdles of Article V.

What is especially striking about the Arizona redistricting case is that no one is defending the practice of partisan gerrymandering. Even more to the point, no one is arguing as a matter of policy that states should be deprived of the option of using independent commissions, rather than conventional legislatures, to draw congressional districts. Roberts, to be sure, questions whether independent commissions will prove to be as nonpartisan in practice as their advocates claim. But he acknowledges that states can use independent commissions to draw the district lines for their own state legislatures, and he recognizes why states would want the constitutional power to do so for congressional districts as well. Thus, the relevant policy here is not whether a state should adopt an independent commission over other method of congressional districting; rather, the policy question is simply whether states should be denied the right to experiment with this particular tool in the anti-gerrymandering toolkit. No one—certainly not Roberts—is attempting to make this policy argument.

Thus, in this particular context, to stand on literalism is to do so purely for its own sake. It serves no higher constitutional value here. The better course in this situation is to do as the Court did: let’s give the term “Legislature” not its most natural reading, but a more “republican” one—one that better achieves the aim of popular sovereignty.

Enabling states to employ independent commissions for congressional redistricting may ultimately prove unsuccessful in resisting the scourge of partisan gerrymanders. But massaging the Constitution’s text to give the states the chance to try this approach, without having to jump through the hoops necessary for a constitutional amendment, is a decision that vindicates the reason why we have the Constitution in the first place: to provide a workable structure of government through which the American people can continue to conduct their collective experiment in self-government.