"Nonjudicial Solutions to Partisan Gerrymandering"

I have posted this draft of an Essay forthcoming in the Howard Law Journal, “Nonjudicial Solutions to Partisan Gerrymandering.” Here is the abstract:

This Essay offers some hesitation over judicial solutions to the partisan gerrymandering, hesitation consistent Justice Frankfurter’s dissenting opinion in Baker v. Carr. It argues that partisan gerrymandering reform is best suited for the political process and not the judiciary. First, it traces the longstanding roots of the problem and the longstanding trouble the federal judiciary has had engaging in the process, which cautions against judicial intervention. Second, it highlights the weaknesses in the constitutional legal theories that purport to offer readily-available judicially manageable standards to handle partisan gerrymandering claims. Third, it identifies nonjudicial solutions at the state legislative level, solutions that offer more promise than any judicial solution and that offer the flexibility to change through subsequent legislation if these solutions prove worse than the original problem. Fourth, it notes weaknesses in judicial engagement in partisan gerrymandering, from opaque judicial decisionmaking to collusive consent decrees, that independently counsel against judicial involvement.

This Essay is a contribution to the Wiley A. Branton/Howard Law Journal Symposium, "We The People? Internal and External Challenges to the American Electoral Process." is

"Why not continue the political struggle in partisan-gerrymandering cases?"

I have this piece up at SCOTUSblog entitled, “Symposium: Why not continue the political struggle in partisan-gerrymandering cases?” It begins:

“In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.” So wrote Justice Felix Frankfurter in his dissenting opinion in Baker v. Carr in 1962.

It was, of course, a dissent. A majority of the Supreme Court in short order reorganized state legislatures according to its own understanding of fair representation — that population should be roughly equal in each legislative district. And the majority’s basis for doing so, Frankfurter’s dissent chided, “ultimately rests on sustained public confidence in [the Court’s] moral sanction.”

The political process is a messy thing. It is laborious to educate the public on a matter and convince them of that matter’s significance. It is time-consuming to wait through election cycles to enact political changes. Impatient litigants demand the federal courts to intervene when the political process moves too slowly.

My thoughts on Gill v. Whitford at SCOTUSblog: "No closer to consensus"

I had the opportunity to participate in a symposium on Gill v. Whitford at SCOTUSblog last here. Here's my entry. It begins:

Gill v. Whitford began as a blockbuster election-law case and ended (this time) as a federal-courts decision with a hint of trial strategy and evidence. It also left open the possibility of a transformational view of the First Amendment for future partisan-gerrymandering cases.

In 2016, a three-judge federal court found that Wisconsin’s state legislative map drawn in 2011 was an unconstitutional partisan gerrymander. Many hoped that the Supreme Court could provide a majority opinion articulating a standard for lower courts to handle such claims — past attempts at securing a majority had been elusive. But it wasn’t meant to be.

Subversive gerrymandering reform in Pennsylvania

The Pennsylvania Supreme Court recently released its long-awaited remedy in Pennsylvania's partisan gerrymandering litigation. The court decided that the legislature's congressional district maps were an unconstitutional partisan gerrymander under the commonwealth's constitution. There are many aspects of this litigation that merit brief mention up front.

First, the question of how the state constitution or state supreme court might bind the state legislature in exercising its power as the "legislature" under the United States Constitution to regulate the "time, places, and manner" of elections. (I have some thoughts on that question in the Florida State University Law Review.) That's a question that may see ongoing litigation, but I think the legislature's likelihood of winning is slim.

Second, the question of partisanship in the judiciary as a remedy for partisan gerrymandering. Pennsylvania has not simply judicial elections, but partisan judicial elections. Some have pointed to the federal courts--judges without partisan affiliation and the security of life tenure--as a good place to solve issues of partisan gerrymandering. Here, the litigation was only successful because Democrats secured a recent majority on the Supreme Court--and the litigation undid a Republican legislature's map signed into law by a Republican governor. It might be the case that we quickly turn to the partisan affiliation of federal judges in gerrymandering disputes, but that pales in comparison to actual partisan affiliations in contested judicial elections. (It also offers conflict of interest challenges after Caperton v. Massey (which has its own challenges!), and political cries for impeachment or removal from office, a decidedly different and unsurprising look, in my view.) I think, then, one might rightly wonder about how to examine the cure for excessive legislative partisanship in a partisan elected judiciary.

Third, the question of judicial regularity in the decisionmaking process, from the not terribly persuasive distinction of a recent supreme court case that had rejected a similar claim under the commonwealth's constitution, to its decision to withhold its reasoning for weeks (n.8), to its abbreviated timeline for the legislature to remedy the ill before the supreme court would implement its own map. Each offers serious concerns.

But I want to set these aside for a moment. All these are very interesting matters that merit further discussion at other times. I think some have more merit than others--and some I don't view as having much merit at all.

Instead, I want to focus on a matter that I view as fairly subversive in the Supreme Court's process, and a method that I think bodes ill for future gerrymandering reform efforts.

On February 19, the commonwealth's Supreme Court issued its remedy, its own map. And what was the Supreme Court remedying? A claim that the map was an unfair partisan gerrymander under the commonwealth's constitution.

But what was the remedy demanded by the court? It instructed the legislature and governor to agree on a plan that adhered to three values: compactness, contiguity, and avoidance of dividing jurisdictions.

That remedy isn't very much like the remedy to the initial problem: did Republicans unfairly advantage themselves too much under the commonwealth's constitution when drawing congressional districts? Certainly, a lack of these three values were signs of concern for the court, but they were not the underlying problem with the map. But the court's remedy asked to draw maps with these three values, expressing no more conditions.

So remedies came pouring in. Unsurprisingly, a divided government in Pennsylvania meant no agreement on a new map (plus, a calculated gamble from Democrats that the court's map would be more favorable to them than a compromise with Republicans). The court issued its own map (as noted above, with little time to spare for the 2018 election).

The map, of course, adheres to these three values, albeit not perfectly (few maps do), in order to make calculated tradeoffs. Those tradeoffs were a significant benefit to Democratic candidates' chances in the commonwealth. (I'll leave to others to analyze how beneficial.)

Those tradeoffs were immediately obvious: Nate Cohn tweeted, "It is fair to say that this map was drawn with the goal of achieving partisan balance, even though that at was not a state goal of the order." Dave Wasserman noted that the map "actively help[]s Dem[ocrat]s compensate for their natural geographic disadvantage in [Pennsylvania]," and that it reflects a "ringing endorsement of the 'partisan fairness' doctrine: that parties should be entitled to [the] same proportion of seats as votes." And Harry Enten tweeted, " Different folks have different criteria on what maps a good congressional map. If vote % to seat % is what you want, that's cool. Just don't sell me stuff on compactness. (Some folks try to, some don't...)"

These snap reactions reflect that something occurred beneath the surface of the Pennsylvania Supreme Court's order. Professor Nick Stephanopoulos noted that this remedy "promises actually to cure the underlying constitutional violation," unlike simply addressing the three values. The New York Times emphasized, "The court’s apparent prioritization of partisan balance is something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map."

Let me offer the outset that I am not doubting the sincerity or well-intentioned motives of the justices on the court or those involved in drawing maps. Partisan fairness is, in my view, as legitimate a political criterion to use when thinking about how to draw maps as partisan-blind or neutral criteria.

But the Pennsylvania Supreme Court did not, in my view, act forthrightly in its opinion dictating criteria and its ultimate map. The criteria it enunciated--its three values of compactness, contiguity, and avoidance of dividing jurisdictions--were never really going to cure the problem it had identified.

It's something like (ed: a metaphor sure to have its limitations!) a doctor diagnosing a patient with a mysterious disease and asking for ideas about how to treat the symptoms of the virus--a runny nose, a cough, a sore throat. When the ideas come in for a decongestant and lozenges, the doctor rejects them, saying, "I have my own decongestant and lozenges"--but one that also comes with blood transfusions. The blood transfusions might be useful, but it was hardly a part of the original proposal.

The Pennsylvania Supreme Court apparently did not want to include language like "seats-votes ratio" or "partisan fariness" into its construction of the commonwealth's constitution. Perhaps it's understandable--doing so would be quite controversial and perhaps even politically unpopular by all parties. It would have to articulate standards about how to achieve those results. It would need to spend more time explaining how it could go about achieving those ends, much less political actors in the state.

So, it didn't include that language. But there is no doubt, from every commentator looking at the outcomes, that that is precisely what it did when drawing the new map. It consciously engaged in a partisan fairness inquiry of mapmaking, when that was not articulated expressly as one of the three criteria it asked the legislature to use in its new map, and when that was not expressly one of the criteria that it found required by the commonwealth's constitution.

That is deeply troubling, I think, from, to use a generic term, the "rule of law" perspective. It is fairly subversive, in my view, to articulate one basis for a decision but then actually act on another, or to insist that the commonwealth's constitution demand one thing but act like it insists another. Or, even if the court didn't believe that the constitution demanded it, the choice to overtly engage in a partisan fairness inquiry without any explanation or justification about how it made that choice.

(An expected contra: courts are partisan and political actors, and if the state legislature isn't going to be required to do so, maybe courts shouldn't either. That case, then, simply has to be made....)

There are two legal challenges to this decision that, I think, offer a slightly greater chance than some commentators I've seen are giving credit for.

The first is that this is simply too late in the game for these chances. The Pennsylvania Supreme Court's reasoning only came out two weeks ago; the legislature and governor had days to come up with a remedy before defaulting to the court. The United States Supreme Court has allowed "flawed" election maps to be used when the chances are too close in time to the election, and a minimal decision from the Court, citing Purcell or redistricting decisions, might simply hold off this decision for 2018.

The second, and the one that I've wondered more about, is the Bush v. Palm Beach County Canvassing Board decision. The oft-forgotten predecessor to Bush v. Gore, this was a unanimous decision from the Supreme Court. It wondered what the basis for the Florida Supreme Court's decision was in creating rules for the recount--federal law, or state law? It sent the matter back for further clarification, because the court's original order was so opaque. That's because the state legislature still had a priority in establishing a process to choose presidential electors, and a state-based decision that strayed too far from the constitutional commitment might be problematic.

I am not sure the Supreme Court would even engage in this process, except that it would assuredly, postpone the decisionmaking for the 2018 election. But, to the extent that the criteria used by the Pennsylvania Supreme Court were sufficiently opaque as to fail to offer the legislature with the opportunity to draw a map consistent with its desired outcomes, the Supreme Court might send it back to require that this commitment be taken more seriously. In LULAC v. Perry (2006), Justice Kennedy wrote that "a lawful, legislatively enacted plan should be preferable to one drawn by the courts," emphasizing adherence to the "ordinary and proper operation of the political process." To the extent that the Pennsylvania Supreme Court's subversive decision failed to give the legislature adequate opportunity to address its concerns in fashioning a remedy, a challenge may have more success in at least postponing the decision for 2018 than some are giving it.

Until then, we shall see if this process plays out in other states--opaque process-based neutral criteria articulated by a state supreme court, then value judgments never previously articulated like partisan fairness incorporated into the final judicial remedy.

UPDATE: Nate Cohn has this important contribution to evaluating the premise of this analysis: that the map does tend to advantage one party over another in the drawing of lines. Whether that's an appropriate remedy depends, of course, on how one interprets the analysis above.

Partisan gerrymandering: never trust John Kasich with any power or responsibility

This is the fourth in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here. The third is here.

Among the many amicus briefs filed in behalf of the plaintiffs and appellees challenging Wisconsin's state legislative district maps, one can find many current and former elected officials, Republicans and Democrats. One of those is Governor John Kasich of Ohio.

In 2011, Mr. Kasich signed into law a new congressional map for the State of Ohio, described by some as one of the most gerrymandered maps in the country. He was, quite literally, in a singular position as an elected official to veto the map and, as an actor in the political process, take a "stand" against partisan gerrymandering.

Instead, here, six years later, he has asked the Supreme Court never to trust him again--indeed, he has represented to the people of Ohio that he cannot be trusted with power or responsibility. He has asked the federal courts to step in and help draw district maps, because he cannot be trusted to do so.

It is a rather shocking thing, to me, at least, to read so many elected officials happily asking the federal courts to take political power from them, and expressly on the basis that they cannot be trusted to use it responsibly. That, I suppose, is par for the course for many politicians in our time of delegation to the administrative state and a reluctance to engage in the hard decisionmaking required of them. And it is, I suppose, to be expected for those currently (and, of course, temporarily) in the political minority in their jurisdictions, who may be tempted to seek an immediate and expedient solution to their political challenges.

But reading these pleas from politicians should be jarring. Some, I imagine, would read it very differently from the way I do--that is, they view this as the ultimate cry for help from a political process that cannot effectively respond in an effort to secure some help from a place of last resort, the federal courts. I, however, see it just the other way--the disappointing response of elected officials who hold the power and fail to exercise it responsibility, then seek to discard it into the responsibility of another.

Quick thoughts from today's oral argument in Gill v. Whitford

This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.

Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.

Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.

Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.

First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.

Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.

Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.

Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.

Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."

Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."

The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."

Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)

Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."

Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.

Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....

Partisan gerrymandering: a problem with an assumed solution

This is the second in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here.

I'll stipulate it. Partisan gerrymandering is a problem. And it has long been a problem. From the early days of the Republic to the present, it has vexed the political process.

But if that is a problem, the question is, what should the solution look like? Or, more specifically, who should fashion the solution?

Even if partisan gerrymandering is a problem, a solution that turns on the federal judiciary assumes that it is best suited, or suited equally with the political branches, to address the problem. There has been no meaningful argument that the federal courts are to be a last resort (a weaker version of the justiciability claim) or that they lack the institutional competence to handle these matters (the basic argument concerning the "political question doctrine").

Indeed, even in Baker v. Carr, the Court went out of its way to point out the (practical) political futility of trying to change redistricting by the political process, emphasizing that the people of Tennessee lacked the initiative power to amend the state Constitution to address concerns about malapportionment in the state legislature. (Of course, I should note, the people of Wisconsin also lack that power!)

It will inevitably stifle any innovation at the state level. Florida, California, and Arizona are just a few of the states that have initiated efforts to change how redistricting occurs in each state. (Arizona's even survived a legal challenge, albeit, I think, dubiously.) Florida added a constitutional amendment with fairly specific provisions that invited state judicial involvement; California created a citizens redistricting commission to draw the lines; Arizona developed a bipartisan redistricting commission. Whether these are the right solutions (as each is different) is probably a question of perspective.

But, I think, political, state-based efforts like these will be overwhelmed by litigation in the federal courts in the event the Supreme Court articulates a constitutional standard and finds that Wisconsin's redistricting runs afoul of it. True, some states (or, probably more specifically, their voters!) might want to go above and beyond this standard. But I do think that political innovation will dry up fairly quickly.

State law in Wisconsin already provides some modest protection against gerrymandering. The Wisconsin Constitution requires that state legislative districts be "contiguous territory and be in as compact form as practicable," and that "no assembly district shall be divided in the formation of a senate district." These help prevent--but by no means end!--some manipulation in redistricting.

And the governor--from a statewide elected office--is still involved in redistricting. To the extent the legislature has entrenched itself, a statewide, non-districted office remains a part of the process.

All this is to say that a three-judge federal court stepping into a traditional political area, and longstanding state practice, is the assumed solution in this case, and it is not immediately obvious that ought to be so. When courts articulate a standard, or apply their own judgment to a case, it simply looks different than political or state law-based redistricting. It is by no means obvious to me that the flaws of a few federal judges (and the litigation that surrounds such cases) are going to be somehow better for our democracy than the messy, sticky politics we've slogged through for a couple of centuries.

Some, of course, have pointed to the fact that only in cases of extreme partisan gerrymandering should courts intervene, or that this era is unique in partisan gerrymandering (to be fair, a claim made in the 1980s and 2000s in the last go-arounds, too). But to invite federal courts to weigh in on the state legislative redistricting process is, I think, significant to a degree not sufficiently recognized (in my own view!) in the discussions surrounding partisan gerrymandering so far. That is, even if gerrymandering is a problem, assuming that the federal courts are the best (and, indeed, they will become the prime place if the appellees succeed in Gill v. Whitford), or the necessary, place for such a solution is, I think, a logical step that requires something more.

Partisan gerrymandering: a scatterplot clause in the Constitution

This is the first in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week.

The Supreme Court is set to hear Gill v. Whitford, an appeal from a three-judge panel finding that Wisconsin's state legislative redistricting was an unconstitutional partisan gerrymander. A read of the amicus briefs in support of the appellees, however, suggests that the resolution of this case doesn't have much to do with the Constitution.

Among the 32 amicus briefs filed in support of appellees, just 12 even bother to cite the United States Constitution (from my review of the tables of authorities). Among those, just eight cite the most relevant texts: the Fourteenth Amendment (the basis for the finding that partisan gerrymandering claims are justiciable under the Constitution in Davis v. Bandemer) or the First Amendment (Justice Kennedy's suggested alternative constitutional provision for assessing partisan gerrymandering claims in Vieth v. Jubelirer). Indeed, even the brief of Constitutional Law Professors fails to cite the Constitution. And the appellees themselves do not cite to the Constitution, either. [UPDATE: A commenter below notes that the briefs do refer to these constitutional provisions in other places. The Constitution is not cited or included in the Table of Authorities, but it is referred to.]

Briefs understandably do different things. But most appear to drift away from any attempt to figure out what the Equal Protection Clause means: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The briefs, and the public commentary surrounding them, have focused on something else: political evidence and political science data surrounding Wisconsin in particular and redistricting generally. Maps showing old and new district lines and political boundaries, shaded maps with voter preferences, bar charts, and scatterplots overwhelm the discussion.

It's true that the bulk of the case is about what evidence courts can, or should, use when evaluating a partisan gerrymander. But that gets a bit ahead of the first question, in my view: what does the Constitution demand in redistricting? That is, what does it mean to "deny" a person (perhaps, in particular, a voter) the "equal protection of the laws"? It appears to me, at least, that this question of law has been relegated to an assumption or afterthought as the data and tools and evidence dominate the debate. Others, I'm sure, may disagree, pointing to the language from cases like Bandemer or Vieth in establishing the relevant legal standard. But, I think, given the uncertainty for three decades in these partisan gerrymandering cases, I think spending time working with the text of the Constitution remains a question of prime importance.