January 28, 2017

The panel of judges in the Wisconsin redistricting case decline the work of doing the new line-drawing.

The Republican-dominated state legislature will have to redraw the lines itself, which the panel had found to be unconstitutional political gerrymandering.
“It is the prerogative of the state to determine the contours of a new map,” the three-judge panel ruled.
That was a significant loss for the plaintiffs, after their win on the merits last fall.
The same three-judge panel ruled in November that Wisconsin’s legislative boundaries are an “unconstitutional partisan gerrymander” that “was intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”
And the win on the merits is unlikely to survive Supreme Court review. The state is going to appeal to the Supreme Court, and the jurisdiction statute requires the Court to take the case on appeal directly from the district-level panel. No stop at the 7th Circuit. No petition for certiorari. This will be heard in the Supreme Court — which has never found any redistricting to be unconstitutional political gerrymandering.

This case introduced a new way to measure the equal protection problem in districting, the "efficiency gap" which looks for each party's "wasted votes":
Wasted votes, accrding [sic] to the efficiency gap’s creators, are the number of “lost” votes cast for losing candidates and “surplus” votes for victorious candidates in excess of what they needed to win.
This test helps Democrats overcome the problem of having its voters concentrated in relatively small geographic spaces — that is, cities. It would make an equal protection problem out of a pattern of human behavior. It's basically the same problem Democrats have with the Electoral College: Their voters aren't spread out enough geographically. This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.

And yet if the case were to go through the current 8-person Court, I think the panel's decision would be affirmed by an equally divided Court. And if Hillary Clinton had won the election and had the Supreme Court appointment to make, the new Democratic-Party-favoring test may very well have become the law.

91 comments:

Hagar said...

Supreme Court Law and Constitutional Law is not necessarily the same thing. What one court says ccn be changed by a later one, but the Constitution stays the same unless Amended.

David said...

so maybe the state should not appeal? At least not yet.

AReasonableMan said...

How is an anti-gerrymander law Democratic Party favoring? Isn't it simply favoring Democracy?

Chuck said...

Agreed, Professor Althouse. Great, succinct analysis. It was a 2-1 decision at the Seventh Circuit, as I recall. I see it 5-4 for the State of Wisconsin in a 2018 decision. (Funny, isn't it, to be talking about a 2018 decision? Who knows what could happen between now and then?)

Danno said...

It started with the Civil Rights Act creating safe districts for minority candidates and has accelerated as the cities have gathered most of the Democrat voters. I remember seeing a reference to Democrats "self-gerrymandering" the other day. Too funny.

Danno said...

fyi - The article that I saw the self-gerrymandering reference.

http://www.nbcnews.com/specials/democrats-left-in-the-lurch

David Begley said...

Appoint a Special Master: the well known constitutional law professor emeritus Ann Althouse. She's from Wisconsin.

MaxedOutMama said...

So elections do matter. Very interesting; thanks for post.

Mike Sylwester said...

Where in the Wisconsin constitution does it say the Democratic Party's votes should get maximum "efficiency"?

rehajm said...

a practice intended to establish a political advantage for a particular party or group by manipulating district boundaries.

My tiny brain is struggling to understand why the 'efficiency gap' test doesn't also meet the above definition.

Curious George said...

"It's basically the same problem Democrats have with the Electoral College: Their voters aren't spread out enough geographically. This is a terrible problem for Democrats"

Maybe they should think twice about calling people deplorable.

Original Mike said...

Can't read the article because i'm not a subscriber. What type of districts are we talking about, state or federal government districts?

rhhardin said...

A computer could do better, with a few constitutional rules limiting border complexity. The program that does it would be open to checking.

Democracy is represented by equal numbers in districts, not perverse shapes.

Don't group by interests but by geography.

David Begley said...

To clarify the above, Professor emeritus Althouse would be appointed the Special Master to draw the lines. She could use her Pelikan pen. Draw the districts to look like those rats. And name the districts rather than number them. "I live in district Raddatz."

Ann Althouse said...

Bad link fixed. Thanks for the alerts about it (deleted now to avoid confusion).

Original Mike said...

"A computer could do better, with a few constitutional rules limiting border complexity. The program that does it would be open to checking."

That's what I've always thought. I'm sure our Reasonable Man would agree.

Ann Althouse said...

"It was a 2-1 decision at the Seventh Circuit, as I recall."

It was 2-1 but not in the 7th Circuit. This is a panel at the district court level.

One of the 3 judges was a 7th Circuit judge, the other 2 were district judges:

" Kenneth Ripple, a judge for the 7th Circuit Court of Appeals, and district court judges Barbara Crabb and William Griesbach."

Ken B said...

I can see overturning a rule that affects classes of voters such as blacks, but not parties, which have no constitutional status

Ann Althouse said...

Here's the statute that makes these redistricting cases different.

"A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body."

This arose out of political opposition to redistricting cases. You avoid having one district judge handling it, and you get right to the Supreme Court after the panel, and the SCt must take the case.

Ann Althouse said...

"Can't read the article because i'm not a subscriber. What type of districts are we talking about, state or federal government districts?"

It's only about the state legislature.

Ann Althouse said...

"My tiny brain is struggling to understand why the 'efficiency gap' test doesn't also meet the above definition."

The test is designed to set a judicially manageable line between political advantage-taking by the legislature and advantage-taking that violates the Equal Protection Clause.

There's always some politics in the line drawing, but at what point is there too much. You could say: never. Or: the courts cannot handle the problem even if there is a point when there's too much.

But the idea that there's a point where gerrymandering violates the Equal Protection Clause has been in the case law for a long time, even through the standard has never been articulated by a majority of the Court, no violation has ever been found by the Court, and some members of the Court have said that the problem should not be addressed by the courts at all.

Ann Althouse said...

"A computer could do better, with a few constitutional rules limiting border complexity. The program that does it would be open to checking. Democracy is represented by equal numbers in districts, not perverse shapes. Don't group by interests but by geography."

Who would program the computer? Would the "efficiency test" go into the program?

Also: Would you argue that since a program could be programmed to do the work, the Equal Protection Clause requires that the work now be done with a computer?

Bob Ellison said...

The term "gerrymander" now means the opposite of what it once meant.

We'd be better off, in most cases, just drawing lines like graph paper.

Ann Althouse said...

"To clarify the above, Professor emeritus Althouse would be appointed the Special Master to draw the lines. She could use her Pelikan pen. Draw the districts to look like those rats. And name the districts rather than number them. "I live in district Raddatz.""

Ha ha.

But I identify as emerita.

tim in vermont said...

I can see it now, the Adirondack region represented by politicians based in Brooklyn.

David Begley said...

Latin feminine. Should have known better.

Original Mike said...

So I guess the relevant map is here: Assembly Districts. There are some cases I would consider inappropriate. Look, for example, at the northern boundary of district 71. I don't support political gerrymandering, which this looks like. But drawing boundaries to minimize a party's "wasted votes" would also be gerrymandering.

Ann Althouse said...

"We'd be better off, in most cases, just drawing lines like graph paper."

You have to get the districts roughly population proportionate.

And the traditional standards are: compactness, contiguousness, and respect for political subdivisions. These are not going to be like graph paper, because there are mountains and hillsides and oceans and rivers...

... enough to last 'till the end of time.

rhhardin said...

The computer would be programed in general, not for the districts it's used on.

Put in a map, restrict border complexity but follow natural geographical boundaries like rivers and roads, population numbers and where, and let it do the boundaries.

Efficiency is not in. There's no input for voter affiliation at all.

Just equal populations in districts.

Original Mike said...

"Who would program the computer? Would the "efficiency test" go into the program? "

The "efficiency test" is gerrymandering, too. A set of mathematical rules could limit the twists and turns of the boundary line.

Original Mike said...

"And the traditional standards are: compactness, contiguousness, and respect for political subdivisions."

That last one is the problem.

rhhardin said...

Efficiency thinks ethnic division. But it's America voting, not ethnic identities.

EDH said...

A panel of judges?

Isn't that a worn out term? Panelling, so 1970s and before.

Shouldn't it be a fresco or mosaic of judges, reflecting our diversity?

(Jeez, I just typed "1970s" and that date, the numbers, the nineteen, for the first time look so... ancient.)

rhhardin said...

Simplest mathematical rule, if you have just one, minimize the square of the perimeter divided by the area.

tim in vermont said...

Of course we know that were the shoe on the other foot, these same people would be pushing for maximum partisan advantage.

The law is about rationalizations for the will to power. Arguments like "love wins" prove it.

Ann Althouse said...

With the computer, you could just not tell it anything about how you expect people to vote.

You could exclude information about race and ethnicity and about income levels.

tim in vermont said...

I think I would go with a "frieze" of judges.

Ann Althouse said...

"A panel of judges?"

This reminds me of Mad Magazine humor. They'd get one of their artists to draw a 70s-era den with flattened out judges affixed to the wall.

Michael K said...

The panel of retired judges was tried in California back when the state was sane. Willie Brown ran a proposition to overturn that and then, after he won, he boasted about how he had fooled the public with the campaign.

California didn't turn crazy by accident. It was planned. Just like Kemala Harris was Willie's girlfriend.

Gahrie said...

You have to get the districts roughly population proportionate.

Which is the purpose of redrawing the lines after every census.

And the traditional standards are: compactness, contiguousness, and respect for political subdivisions.

By political sub-divisions...they mean cities, county lines and the like..right? Not political parties. The 900 pound gorilla that no one is talking about is the need to protect minority-majority districts so that the number of minority politicians is not reduced.

mtrobertslaw said...

Wouldn't the "efficiency test" hurt democrats in their urban strongholds and require redistricting of those strongholds? There would always be a great gap between "wasted" republican votes and the number of votes received by democrat candidates.

By the way, who came up with this efficiency test anyway?

Gahrie said...

You could exclude information about race and ethnicity and about income levels.

Wouldn't ignoring race violate the law? I know it would in states under Justice department monitoring if it resulted in fewer minority electoral wins.

AReasonableMan said...

tim in vermont said...
Of course we know that were the shoe on the other foot, these same people would be pushing for maximum partisan advantage.


But the shoe is on the other foot. If it goes to the Supremes it would affect elections nationally.

Gahrie said...

By the way, who came up with this efficiency test anyway?

Democratic Party lawyers.

William Koekkoek said...

Original Mike at 0913 A better map (interactive) at http://maps.legis.wisconsin.gov/ . It shows that the "jaggies" between the 71 and 70 districts are in the area of Park Ridge and Stevens Point. Don't know if the intention is to try and keep the incorporated town as much as possible in one district.

This map allows you to zoom in at will. A suspicious "bump out" between 32 and 63 turns out to be to place the entirety of a municipal airport in one district.

More probamatical are the "inclusions" of District 79 with in District 78 in the Madison area. At least two of them appear to single out a single building. (I have not checked Google Earth to see what they are.)

Seeing Red said...

I have an idea.

Forced relocation of democrats outside their urban dwellings.

I vote red, can I be forced to move to Hawaii? Please?


Surplus votes?

Isn't that usually called winning?

Talk about language manipulation.

Seeing Red said...

Let the computers decide.

But who watches the code writers?

Original Mike said...

Thanks William. Madison looks like a dissected cuesta.

rhhardin said...

But who watches the code writers?

Everybody watches the code writers.

The thing about computers is that they have no inside. You can find out everything that goes on in them.

rhhardin said...

Coleridge vis Schelling: "Matter has no inwards."

Bob Ellison said...

Print the map of the state on graph paper. Allocate vote-weight according to population. This is not difficult.

William Koekkoek said...

At the corner of Valley View Rd and Lone Oak Lane there is an inclusion of the 79th that contains two buildings. Just west on the south side of Valley View between Redan drive and Tall Pines Way there is an inclusion the contains 7 buildings. In that area there are two separate, much larger inclusions but each only includes a handful of buildings.

North of there on Mineral Point Rd at the intersection with South Point Rd there are two inclusions that each contain a single building.

William Koekkoek said...

In the area of Cross Plains between Ludden Drive and Tilda Trail there is a weird shaped cut out that looks a lot like a key. Zooming in shows that it appears to be a straight north south line combined with a line following the ridgeline just to its west. It contains no roads or buildings.

If the dashed lines on the map represent town lines then it follows the town line (though the district lines are displaced, probably as an artifact.)

buwaya said...

Elect these people at large.
Votes go to a party list, and seats are allocated proportionately.
This will allow for accurate representation in proportion to the population, and also third parties.

Michael K said...

"The thing about computers is that they have no inside. You can find out everything that goes on in them."

To the eternal outrage at UEA where the coding behind global warming was revealed.

cubanbob said...

If people who are legally qualified to vote are not being denied the vote what is the problem?
I live in an overwhelmingly Democrat congressional district. The Republicans have zero chance of winning but I still can cast a vote for whatever sacrificial Republican runs. I have not been denied my right to vote but then again since when did I have a right to expect the party of my choice nearly always gets to win? Since when has the right to vote become conflated with the right to have the outcome of one's choice?

William Koekkoek said...

In the area of La Crosse there is a long appendage of the 95th sticking out into the 94th. The end of it includes two depressions and a suspiciously square hill in the area of Landfill Drive, so probably the town dump.

Owen said...

I think the districts should be shaped like characters in a message that can be read from space. It will spell "Democracy."

Original Mike said...

"I live in an overwhelmingly Democrat congressional district. The Republicans have zero chance of winning but I still can cast a vote for whatever sacrificial Republican runs. "

Ironically, that's their complaint Bob. Not only do they want to elect a Democrat in your district, they want to take their "spare" votes and elect Democrats in the "Republican district" next door.

damikesc said...

Are these the same laws the Dems ran to Chicago over?

AReasonableMan said...

Original Mike said...
"Republican district" next door.


There is no such thing as a "Republican district" or "Democrat district". The system should reflect the will of the people as fairly as possible. Difficult to understand why anyone would think this is controversial.

Birkel said...

AnIgnorantMan spews inanities.

For decency's sake, look away.

Original Mike said...

ARM, you make my point.

Original Mike said...

I'm not the one pushing the "efficiency gap".

mccullough said...

Kennedy is the fence straddler in these types of cases. He still held out that political gerrymandering could go too far and become unconstitutional. But given the recent election in Wisconsin, maybe this case doesn't pass his I'll know-it-when-I-see-it approach to the issue.

tim in vermont said...

Everyone always agrees on what is fair. Usually it has to do with maximizing their own power. Guess which of the above sentences is intended ironically.

tim in vermont said...

I can see fact checkers rating true or false whether a district is fair, because it is totes possible to know!

Sebastian said...

Dems, make up your mind: if you prefer tribal coziness over living among the deplorables, don't whine about it; on the other hand, if you prefer power ueber alles, as you normally would, starting spreading out among the yahoos in the boonies, in WY and ID. Not that I want you to take my advice, or think you will. I know, I know, you want tribe and you want power.

Michelle Dulak Thomson said...

The ironic thing about this is that fixing the "geographic distribution" problem, aka the "efficiency gap," requires gerrymandering. You could, say, divide Milwaukee into slivers and attach each to a chunk of the surrounding suburbs, but that makes no sense to anyone but a Democratic strategist. The needs of the city and of the suburbs are distinct, and so should their representatives be. It's not Republicans' fault that there are so many more Democrats in cities than there need to be to elect one of their own.

This is tied into the "majority-minority district" thing, of course. Lately Democrats have been complaining that Republican redistricters have been doing their job too assiduously, cramming more minorities into such districts than are needed to elect a minority representative. The correct number, obviously, is just enough to guarantee one, and not a single one more. But, again, they did ask for it, and it's difficult not to see why they don't deserve to "get it good and hard." Besides, someone might miscalculate, and then (gasp!) a white person might win. Or an Asian, like Nikki Haley.

Michelle Dulak Thomson said...

As for "compact, contiguous, and respectful of political boundaries," I present to you the electoral map of Maryland, obviously the ancestral home of the Gerrymander. There's nothing like it. (This is for the House, not the state lege, but it gives you the idea.)

And by "present," I don't mean I have a link. There was a slide show of the top 20 gerrymanders in the country from one of the major media outlets some time ago. Six or seven were in MD.

Gahrie said...

There is no such thing as a "Republican district" or "Democrat district"

Tell that to the Department of Justice.......

n.n said...

Geographical or demographic redistricting. Same difference.

Unknown said...

Which party did the previous gerrymander in Wisconsin ? Will republicans file suit in Illinois and California ? Will people notice that are fine going along with democracy when they win, and protest or run to court when they lose ?

Zach said...

Sean Trende wrote a long series about the 2016 election last week, giving particular attention to geographic distribution of votes. He mentioned offhand that Wisconsin is a tough map for drawing Democratic districts. Too much rural population, too large a distance between cities.

I think the Supreme Court would be very reluctant to enshrine political parties and their electoral interests at the level of Constitutional protection. As written, each election is run independently. There is no idea that voting for one candidate in one district should count as a partial vote for another candidate in a different district. So the idea that a party getting 40% of the vote should end up with about 40% of the election wins is actually a very tricky thing to express in a federal system.

Proportional representation is easy to express in parliamentary style elections -- but the Framers had just fought a war of independence and were setting up an alternative to just such a system. There's good historical basis for the idea that they were trying to suppress the idea of "factions" by moving to a system in which each office holder has primary loyalty to the geographic district they represent rather than to like-minded fellow officeholders.

campy said...

He mentioned offhand that Wisconsin is a tough map for drawing Democratic districts.

Since when do we shy away from tough jobs in America?

AReasonableMan said...

Original Mike said...
ARM, you make my point.


Impossible, you didn't have one.

Original Mike said...

You aren't that dumb, ARM.

AReasonableMan said...

Original Mike said...
You aren't that dumb, ARM.


According to your continually inane ad hominem commentary on my posts, I am. Now you are being inconsistent as well as pointless.

Original Mike said...

I stand corrected.

Bad Lieutenant said...

OM, hurry, drop the mic!

AReasonableMan said...

Original Mike said...
I stand corrected.


Not an uncommon experience for you, I would guess.

Zach said...

He mentioned offhand that Wisconsin is a tough map for drawing Democratic districts.

Since when do we shy away from tough jobs in America?


Changing your platform to win elections in tough districts is a tough job. Begging the Supreme Court to solve your problems without changing anything is a cop out.

Drago said...

Shorter lefty: dems are losing! The rules must be changed! It's not over until we win!

Rusty said...

There is no such thing as a "Republican district" or "Democrat district".

An assertion not based in fact.

Joe said...

If we're going to play what ifs; what if you redistrict every state using an algorithm which minimizes geographic irregularity while maximizing contiguous voting precincts in favor of how residents voted in the last election?

My guess is that the biggest effect would be to remove moderates, especially from the Democrat party, but otherwise it would have little overall effect.

Paul McKaskle said...

First, as to the small exclaves of District 79 in District 78, judging from the Madison City boundaries shown on Google Maps, the exclaves are unincorporated territory wholly within the City of Madison. Most contain very few structures. There are some other exclaves in other parts of the state, e.g., in Wausau, Oshkosh among other places as well as in other parts of Dane County, likely for the same reason. See http://maps.legis.wisconsin.gov/ . It may have been done because ballots in unincorporated areas would have different local races than in cities and there might be an inefficient proliferation of polling places for voting.

Second, on the issue of compact and regular boundaries, I suspect the districts which might be the most egregious political gerrymanders are Assembly Districts 13, 14, 15 and 84 each straddling the Milwaukee/Waukesha County boundary. Each has fairly regular rectangular boundaries. Each is a Republican District and it might be (I don't have any data) that if one or two of the districts was in wholly in Milwaukee County it would be Democratic or at least marginal.

Third, on the issue of "excess" votes for one party or another and the establishment of districts in which blacks or another minority will win, there is a case pending in the Supreme Court about majority black legislative districts in Virginia which are being challenged because they were created with a minimum of 55% black voters--thus "packing" the minorities into the districts when some of them could have been spread out to other districts (hence creating more Democratic districts). Something not dwelt upon in these arguments is the fact that this requires "filler people" i.e., whites who must be sufficient in number to prevent "packing" but also not numerous to have any effect whatsoever in the result. In other words, people who are intentionally denied any effective representation. The essence of democracy?

Fourth, "Fine tuning" -- the creation of racially and politically fair single member legislative districts is a sisyphean task and, IMHO and impossible one. If one truly wants "fairness" it would be better to use some form of proportional voting. The dissent in the three judge court refers to the concept tangentially (citing my law review article on the topic) but it does have its own set of problems.

Fifth, for some reason the initial lawsuit involved only Assembly Districts. But the Senate Districts are created by combining three Assembly Districts, and if the Assembly Districts are constitutionally unsound, why are the Senate Districts similarly suspect?

Ken B said...

Rusty, no party is entitled to any district.

Milwaukie guy said...

The ancestral home of the gerrymander is Massachusetts, named in "honor" of Eldridge Gerry.

Besides county and municipal boundaries and geographic features, the computer should be programmed to take into account regional markets, i.e., trade patterns, as per Census data.

A great question is whether the computer should only count citizens for the purposes of apportionment. Maybe non-citizens should only count 3/5ths?

Also, districts should be allowed a 2-3% difference in population numbers in order to adhere to a rule of sensible districts.

Bonus: I lived many years in Rep. Luis Gutierrezs's Mickey Mouse ears 4th District in Illinois.

Chuck said...

By God, Professor Althouse; you are making me miss law school. I didn't know that I'd ever say that.

Bad Lieutenant said...

Dude, Meade will kill you and mulch you and feed you to the trees.


What am I saying?! Chuck, you go right ahead.

Michelle Dulak Thomson said...

Paul McKaskle: To your Point Three, I think I addressed it in precisely those terms. Though "filler people" is new to me. I take it that the idea is that the district is guaranteed a black representative, and therefore the whites in it are chaff. And 55% black is too high, because you could guarantee a black representative with fewer than that, and that's all we want. Ooooookay.

Man, has racial politics gotten complicated.