June 19, 2017

The Supreme Court announced that it will review the 3-judge district court decision that struck down Wisconsin's redistricting as unconstitutional political gerrymandering.

SCOTUSblog reports:
The lower court also ordered the state to create a new redistricting plan by the fall, but a deeply divided Supreme Court today put that order on hold. The Supreme Court’s ruling in the case, which is likely to come next year, will almost certainly be a major one that could affect redistricting efforts for decades to come.
The Court has never found an instance of political gerrymandering to violate the Constitution and has never fixed upon a specific doctrinal test. In fact, it has come close to consigning the issue to the "political question" doctrine, making it one of those supposed problems of constitutional law that are left to other branches of government to take care of. From the last time the Court looked at the issue (2004), there are 2 Justices on the Court today who signed on to an opinion sketching out what the test should be (Ginsburg and Breyer), one Justice who thought it should be called a political question (Thomas), and one Justice who wouldn't say it was a political question or say exactly what the test should be (Kennedy).

It's quite possible that we'll end up with another mushy decision, stating no test but saying that the particular instance of redistricting doesn't violate whatever the test would be. That would just repeat the 2004 pattern, with Ginsburg and Breyer getting the votes of Kagan and Sotomayor and articulating some kind of doctrinal test, Kennedy agreeing with them only to say that the question is justiciable (i.e., not within the "political question" doctrine), and Thomas still saying it's a political question and joined perhaps by Roberts, Alito, and Gorsuch (or those 3 could go along with Kennedy). That is, I expect the Wisconsin redistricting plan to be found constitutional and the question to remain justiciable and still not governed by a specified test.

As SCOTUSblog notes, the Court has already decided that the state can use the new districting, and that was a decision that included as a factor a determination that the state is "likely to succeed on the merits." In other words, the state is likely to win.

But something interestingly new could happen in this case, which is called Gill v. Whitford. (Whitford is one of my long-time Wisconsin Law School colleagues.) As discussed previously on this blog:
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.
As I said when I wrote that in January of this year, "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."

63 comments:

Todd said...

So the results of districting is that constituents are "grouped" such that they get the representation they (as individual districts) want (i.e. a minority representative) but the side affect is that they don't get a "larger" voice? Well sure.

As to the politics of it all, you don't see Democrats complaining that the CA districting is a mess do you?

Only the "losers" complain (as in national party).

Want to take politics out of it? Have a computer program draw districts such that they all share the same +/- number of people with the most efficiently compact size without regard to party affiliation. That is the "right" answer but will never be approved as you can't gerrymander your way into any sort of desired result (i.e. minority district or dem distict or rep district).

Dave from Minnesota said...

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.

The following is not meant to be current numbers, but to illustrate:
Milwaukee/Madison, Minneapolis/St Paul, vote roughly 65+% democrat, to 35-% Republican. Smaller cities and towns vote 48% Democrat, 52% Republican. Statewide is 53% Democrat, 47% Republican, yet the Republicans control the state legislature, and do well in congressional races. Democrats cry "gerrymandering". Is it the Republican's fault that liberal types all live together in cities with little diversity?

Bay Area Guy said...

It's a bit of a shell game by the Dems.

They claim that gerrymandering by race is unkosher. (Under the 14th Amendment, it probably is.)

So, each party when in power, gerrymander by party, not by race.

The Dems have an internal problem though. Gerrymandering to get black majority districts helps the Congressional Black Caucus (more black legislators), but hurts the Dem party as a whole, because it dilutes Dem votes in neighboring districts.

In the South, for example, you will have a few black Democratic congressmen, surrounded by (mostly white) Republican congressmen.

The Dems have lost most of the governor mansions, and hence, have lost much of the power to gerrymander by party. So now -- what a surprise -- they sue to stop gerrymandering by party.

Dave from Minnesota said...

It seems to me that a certain type of person wants racial people to be grouped together (hispanic, black) to get a certain victim group in office, but they want white liberals spread out to reduce power of conservative voters.

Minnesota did this in 2010 to try to unseat Michele Bachmann. DFL was in charge of redistricting, so they put eastern St Paul into Bachmann's district, hoping that would be enough Democrat votes to get her out. To offset this, they took away Republican areas elsewhere. Didn't work. Not even close.

Xmas said...

I think that this comes down to a problem of having too few Representatives in the House. The number of reps has been locked at 435 for the past 80 years.

khesanh0802 said...

Although I don't particularly like the idea -or practice - of Gerrymandering, it has been with us since at least the Founding. This is a case where I don't think the Courts can help and can only cause harm (similar to Roe). The Federal government , certainly the SC should not be involved in determining who belongs in what district. The answer is at the state level and should stay there. Article 1, Section 4, of the Constitution says "the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof." It's not perfect, but it's a lot better than having 5 Justices decide there's a better way.

Dave from Minnesota said...

There was a recent court case where the ACLU sued Pasco Washington and a judge ruled that the city had to gerrymand a hispanic district.

Left Bank of the Charles said...

This redistributing strategy works for Republicans because Democrats lack imagination. There are 8 seats in Wisconsin, and Republicans have given up any claim to 2 of them. It would seem obvious that Democrats have only to adjust to make the 6 remains big seats competitive and they' would have a big advantage. But they don't seem to know how to do that.

My name goes here. said...

Xmas,

Agreed. The size of the house should be doubled, (with congressional staff halved).

The one-man one-vote requirement should be abandoned. If Iowa wants to have first past the post (or whatever parliamentary systems call it) and you go vote for a party and if your party get 55% of the vote then they get 55% of the congressional seats, then they should do it that way. If a state wants to make every congressional race be at large so each congressman represents the entire state, they should be able to do that as well.

All this, IMHO.

Original Mike said...

"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."

Thank God for Vladimir.

stever said...

"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."

And yet some people vote on personality and virtue signaling.

Virtually Unknown said...

Everyone knows that the electoral college is unconstitutional!

Sebastian said...

"one Justice who wouldn't say it was a political question or say exactly what the test should be" IOW, one Justice said it's gonna be up to me, regardless.

Rick said...

This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.

So to summarize: Democrats argue the Constitution requires states to draw districts maximizing Democratic Party representation.

It doesn't sound so compelling.

Earnest Prole said...

Efficiency-gap theory assumes as some kind of natural fact that districts (and, presumably, states) would be divided 50-50 between Republicans and Democrats if it weren’t for gerrymandering. By this logic, California will need to be merged with more than half of the red states in America in order to achieve that elusive 50-50 balance.

Achilles said...

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

The problem for democrats is they can only win in dense urban areas that sign up voters same day and don't want to verify whether the voters are legal and registered first.

Michelle Dulak Thomson said...

Ann, what would be the actual result of the "wasted votes" test? I mean, how could you conceivably implement it? Districts are already supposed to be "compact and contiguous," though an awful lot don't even come close -- still looking at you, MD -- and the only way I can see to reconcile this with the demands of the CBC is to make them even less compact and contiguous. I'm imagining little fingers emanating from every city to scoop up just enough white voters (and not one more!) to ensure a black candidate still wins the city district, but the surrounding districts are also as non-white as possible. I think a lot of people will be angry -- white Democrats as well as Republicans of all colors.

And when there are urban districts that are literally 90% Dem, and rural and suburban districts that are 53% Rep, what on earth do you expect to happen? It is not Republicans' fault that Democrats tend overwhelmingly to cluster in cities, and frankly there's very little your researchers can do about it, short of physically moving tracts of land.

Personally, I would like to see the whole "majority-minority" thing flat-out overturned. Large cities are already majority-minority, most of them, and minority power is already heavily concentrated there. Can't we just go back to redistricting that has some sort of rough connection to the compact-and-contiguous model? It won't get rid of gerrymandering (there are other tricks one can play, like redistricting to incumbents of the same party into the same new district), but it would sure lessen it.

n.n said...

Democrats have discovered how to abort the baby and birth her, too. They can preserve the high-density population centers and subsidize immigration (e.g. illegal aliens, refugees) into unrepresented districts without an explicit effort that will trigger legal scrutiny.

chuck said...

> This case introduced a new way to measure the equal protection problem in districting,

New and original, no doubt. The usual way to evaluate these proposals is if they are likely to improve the chances of Democrats (good) or Republicans (bad), which is to say, it remains a political question.

n.n said...

Americans should be wary that the firewalls (e.g. electoral college) will not hold against this progressive assault (e.g. gerrymandering through immigration reform) on their sovereignty, and they will be forced to subsidize a population that resists assimilation and integration. The establishment of the Pro-Choice Church, setting women and men at each other's throats, and resuming abortion rites only exacerbates the situation.

n.n said...

Unfortunately, both Democrats and businesses like high-density population centers, especially when subsidized through redistributive change, each for their own reasons but with a consensus of overlapping and convergent special and peculiar interests.

Michael K said...

Gerrymandering, it has been with us since at least the Founding.

Elbridge Gerry drew a district that looked like a salamander.

California tried to change the law to put district line drawing in the hands of retired judges.

Willie Brown ran a dishonest campaign that convinced enough voters to turn down the proposition and then bragged about it after the election.

I think that might have been before he was fucking Kamala Harris. It was a while ago, anywya.

Fernandinande said...

Gerrymanders produce neurotoxins in their skins, so keep kisses brief.

Todd said...

Fernandinande said... [hush]​[hide comment]
Gerrymanders produce neurotoxins in their skins, so keep kisses brief.

6/19/17, 2:41 PM


I hear that kissing Jennymanders actually produce endorphins but never kiss without permission. That is a form of "bad touch"!

Hagar said...

I thought there are a number of districts explicitly gerrymandered by court order to guarantee Black representation in Congress and other legislatures?
Which it does, but at the price of creating fertile grounds for the worst kind of machine politics and discouraging "citizen participation" (why "participate" when the election results are foreordainned by "the Organization.").

clint said...

My name goes here. said..." The size of the house should be doubled, (with congressional staff halved).

The one-man one-vote requirement should be abandoned. If Iowa wants to have first past the post (or whatever parliamentary systems call it) and you go vote for a party and if your party get 55% of the vote then they get 55% of the congressional seats, then they should do it that way. If a state wants to make every congressional race be at large so each congressman represents the entire state, they should be able to do that as well.

All this, IMHO."

In general, I approve of letting the states each find their own ways to solve problems. In practice, however, this is a problem in which the states are directly competing for control of the federal legislators. So you get some perverse incentives.

I think you'd end up with nearly every state assigning all their legislators in a block -- to whichever party gets 50.1% of the vote in that state. You'd make the party establishment vastly more powerful and eliminate any kind of local-representation at the federal level.

Yancey Ward said...

That any judge really believes this issue is best resolved in court is just another indication of how far we have fallen as a republic. If you want to change how states draw district lines, get the Constitution amended as you are supposed to.

n.n said...

There are more ways to gerrymander a district than are emoted in Democratic narratives.

Matt said...

If we can gerrymander in a way that supports Democrats then I am all for it. If they gerrymander to support Republicans I am completely opposed to it. Very simple.

Original Mike said...

"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":"

From where does the state derive the power to label me a Democrat or a Republican? The very concept is offensive.

Chuck said...

1. More excellent legal analysis by Althouse. Really admirable work on this subject. (A compliment that she hardly needs from me.)

2. This is a huge issue. While Althouse downplays the likelihood of a truly dramatic and hard-edged ideological decision, even the kind of decision that she is anticipating is massively important election law. Liberal/Democrat/reformists have been looking at the Wisconsin case ever since the intermediate appeal came down. All the liberals want to use it to sue to enjoin Republican-led redistricting all over.

3. Yes; as noted by some above... The Voting Rights Act (even in non-preclearance states) protects what are called "majority-minority" districts. Those are districts where black candidates (virtually always Dems) are supposed to win. There are rare exceptions. Gary Peters (D-MI) was in the House for a couple of terms before he was in the Senate, and he (as a well- known white Dem with good name recognition) won a majority-minority seat immediately after a redistricting. It is now once again a black seat.

Hammond X. Gritzkofe said...

I tell ya, Politicians gonna gerrymander. It's what they do. If they ain't mature enough to play with the tool - and they ain't - they they shouldn't be allowed to have it.

Start with a computer map of population by ZIP code. Center on the Capitol building and draw a line to True North. Rotate line clockwise until enough population is accumulated. Repeat

grimson said...

Todd said: Have a computer program draw districts . . .

A study was done that did just that. A computer program generated 200 different Congressional redistrictings for each state then compared the results to the current representation. It found that the current Congressional districts accounted for only a single GOP representative in excess of their generated districts. It also found that (to nobody's surprise) California is the most gerrymandered state.

Static Ping said...

Actually, the easiest to way to reduce gerrymandering is to make the House smaller, not larger. Lots of states would be reduced to one representative. Of course, the few states that could still gerrymander would get high stakes and quite ridiculous.

Original Mike said...

"A computer program generated 200 different Congressional redistrictings for each state then compared the results to the current representation. It found that the current Congressional districts accounted for only a single GOP representative in excess of their generated districts."

That can't be. No way evil Republicans would be elected to office if they hadn't tricked the voters.

David Baker said...

Otto Warmbier has died in a Cincinnati hospital, murdered by the North Koreans.

Birkel said...

Thanks, grimson.

Gahrie said...

Those are districts where black candidates (virtually always Dems) are supposed to win.

1) No virtually about it. All Republican minority members of Congress were elected in majority White districts.

2) It is not just Blacks. there are Gerrymandered Hispanic and Asian districts also.

Gahrie said...

From where does the state derive the power to label me a Democrat or a Republican?

Your voter registration generally. Sometimes your voting record.

The Godfather said...

@David Baker: I just saw that Mr. Warmbier died. Under the circumstances, that was probably a blessing for him and his family. We have no excuse if we fail to understand the kind of people we are dealing with in North Korea.

Original Mike said...

@Gahrie - That's the method, not the justification.

Bad Lieutenant said...

OM,

What's the justification to track race/ethnicity of American citizens? Rhetorical.

What's the justification to ask American citizens how much money they make? Rhetorical...

David Baker said...

@The Godfather;

Otto Warmbier's death is not a surprise since he was essentially dropped on our doorstep DOA. Still, I find his passing today very upsetting, knowing the North Korean's have thus far gotten away with his murder.

Good thing for them I'm not president, in which case Pyongyang would now look like a smoldering moonscape.

Gahrie said...

The size of the house should be doubled, (with congressional staff halved).

There is an active Constitutional Amendment, introduced with the Bill of Rights and the 27th Amendment, but not yet ratified by enough states, that would mandate one member of the House of representatives for every 50,000 people. Intially each member represented about 33,000 people. Today they represent an average of 700,000 people.
In 1990, Montana's single House member represented nearly 800,000 people, while Wyoming's member represented 450,000 people. The first Congress had 59 House members, and the number was raised over the years, ending in 1913 at 435 members.

Bad Lieutenant said...

Good thing for them I'm not president, in which case Pyongyang would now look like a smoldering moonscape.
6/19/17, 4:48 PM

As soon as we can service 10,000 hardened DMPIs with enough speed to save Seoul metro from being turned into 25,600,000 Warmbiers by DPRK's long-emplaced artillery tubes, President Trump could solve the national debt by raffling off the chance to push the button on those [words fail]s.

Well, for the chance to hand the button to Mr. and Mrs. Warmbier, as is but right.

Michelle Dulak Thomson said...

Gahrie,

Think of the infrastructure spending alone! A House 14 times its current size would, um, need a somewhat bigger building.

The Godfather said...

Hate to say it, but the House of Representatives is probably already too big. If you had 1 representative for every 50,000 people, the House would have more than 6,500 members. That would mean that the permanent staff would run the House. Is that what we want?

HoodlumDoodlum said...

The only Constitutional redistricting plan is one that favors or benefits the Democrats.
For a while the Dems found it beneficial to shunt minorities into single districts, so that minority candidates had easy victories there. Drawing districts with strict racial criteria (making minority-majoirty districts) was at that time perfectly Constitutional--required, even. A bit later it was decided that spreading minority citizens around would help Democrats win more seats, so suddenly districts drawn along racial lines/with racial criteria were determined to be unconstitutional, racist, and ugly.

Now, I'm not a lawyer, and I'm sure there are seriously, deeply thought rationales for these different approaches...but if you apply the rubric of "what do the Left/the Dems think will help them most" to questions of how district drawing and other voting procedure questions, you'll find the results line up w/reality pretty well. Saves time.

Douglas said...

In a better word, the Court would overrule Baker v. Carr and be done with all redistricting cases.

tim maguire said...

The "test" should be that the districts be as compact as reasonably possible. The crazier the boundaries, the more likely it is to be a problem. "Lost votes" is garbage--judicial gerrymandering.

At least legislative gerrymandering, distasteful as it may be, has the advantage of being reviewable by the voting public.

Gahrie said...

In a better word, the Court would overrule Baker v. Carr and be done with all redistricting cases.

this.

Original Mike said...

"...the efficiency gap’s creators... helps Democrats overcome the problem of having its voters concentrated in relatively small geographic spaces — that is, cities"

Mao addressed this problem by sending the city folks to the country. Perhaps the Court could force country folks to put up city voters in their homes during election season.

Gospace said...

The Godfather said...
Hate to say it, but the House of Representatives is probably already too big. If you had 1 representative for every 50,000 people, the House would have more than 6,500 members. That would mean that the permanent staff would run the House. Is that what we want?


The House of Representatives is unconstitutionally too small. NY/WY=34 (rounded up). NY has only 27 congresscritters in the house. From the Constitution, 14th Amendment: 2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed.
New York is 7 congresscritters short of what the Constitution of the United States mandates. Even with penumbras and emanations, it is not possible to misinterpret that.

wildswan said...

Draw out straight lines from the state capital forming districts that must include rural, suburban and city voters, each district with an equal number of voters. That way the rep would have to consider the common good, to find the commonalities among the voters. It wouldn't be city vs. country. Look at the situation in Illinois. It is really caused by downstate voters having been disregarded and now they disregard Chicago. But if parts of Chicago had been grouped in with downstate all along then Chicago would have considered downstate and downstate would now consider Chicago. Same with the way LA disregards the Imperial Valley and Northern California. They might decide to secede from California whether California secedes or not because of the onerous policies being imposed by LA voters on the whole. And Milwaukee would be better off if it were not so disregardful of the surrounding region. And the same is even more true of the Democratic Republic of Madison.

Paul McKaskle said...

if the Supreme Court upholds the decision it would as a practical matter require proportional representation and single member districts are very ill-suited for this purpose. I think the intermediate situation would be one where 3 judge cour conts draw most legislative districts (especially given the recent decisions on racial districts.

Danno said...

The Dems loved the Voting Rights Act, until they didn't. Since the Dems are so packed into large cities, they better hope the Jihadis or the Russkies don't annihilate one or several of their large city districts.

Kirk Parker said...

Dave from Minn.,

" Is it the Republican's fault..."

Say no more -- we know the answer!!!

Kirk Parker said...

O'Mike wins the thread at 3:31pm:

"From where does the state derive the power to label me a Democrat or a Republican? The very concept is offensive."

Indeed. Going further, the states need to get out of the business of running primary elections on behalf of political parties.

Having done so--given that:

* States still have to run statewide elections, and thus their election departments will have more experience than any other entity in running elections, and

* The work of state-run elections is very episodic; busiest right around election time and not so much the rest of the year, and so

* Non-governmental entities such as, oh, say, political parties, might well want to hire the state/county election department to run their primaries.

This latter sounds to me like a reverse form out outsourcing, and I see no reason why it couldn't work. The entities would still set the parameters of who gets to vote, who gets to be a candidate for their party, etc, but would leave the mechanics of balloting and running the vote to their contracted govt election department.

Yancey Ward said...

GoSpace wrote:

"The House of Representatives is unconstitutionally too small. NY/WY=34 (rounded up). NY has only 27 congresscritters in the house. From the Constitution, 14th Amendment: 2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. New York is 7 congresscritters short of what the Constitution of the United States mandates. Even with penumbras and emanations, it is not possible to misinterpret that."


It not only isn't unconstitutional, it is explicitly demanded by the constitution. The 14th Amendment only amended part of Article I, the remaining part that requires each state to have at least 1 representative is still in force. New York has exactly the congresscritter number it is owed by the constitution and so does Wyoming.

Yancey Ward said...

And I will point out something that a lot of people get wrong about House apportionment- indeed I think it one of the biggest errors there is about the constitution. The wrong idea is that Article I demands one representative per every 30,000 people. It doesn't- here is the relevant text:

The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative"

It is the number of representatives and not the number of the represented that is capped.

Yancey Ward said...

The size of the House is explicitly controlled by Congress and Congress alone absent an amendment.

Yancey Ward said...

Congress, if it wanted to, could increase the House up to 1 representative per 30,000 (roughly 6500 someone above calculated), but it doesn't have to do this and it hasn't done it since 1912. After the 1920 census, Congress took no action increasing the size of the House, and in 1929 actually capped it at 435, though there was no real reason to do so- non action works just as well.

Peter said...


Compliance to this "efficiency test," in Wisconsin at least, would seem to require the Republican-majority legislature to gerrymander in ways that are not facially neutral but that actually favor Democrats. Even while requiring little if any reciprocity when the time comes when Democrats control the state legislature. And we're supposed to accept that the federal constitution requires this??

"basically the same problem Democrats have with the Electoral College." And the Court therefore could rule that the 14th Amendment supersedes the 12th? Curiouser and curiouser.


"It's quite possible that we'll end up with another mushy decision, stating no test but saying that the particular instance of redistricting doesn't violate whatever the test would be." Would it rude to say that "mush" is really bad, bad law, in that the only way to know what's compliant and what isn't is to ask courts to provide case-by-case rulings?