June 18, 2018

"The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest 'in their collective representation in the legislature'..."

"... and in influencing the legislature’s overall 'composition and policymaking.'... But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III stand­ing. On the facts of this case, the plaintiffs may not rely on 'the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.'... A citizen’s interest in the overall composition of the legisla­ture is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable 'gen­eral interest common to all members of the public.'... [Professor] Whitford’s testimony does not support any claim of packing or cracking of him­self as a voter [in his district in Madison, Wisconsin].... His testimony points merely to his hope of achiev­ing a Democratic majority in the legislature—what the plaintiffs describe here as their shared interest in the composition of 'the legislature as a whole.'  Under our cases to date, that is a collective political interest, not an individual legal interest...."

From the Supreme Court's opinion today in Gill v. Whitford, finding no standing to challenge the alleged partisan gerrymandering here in Wisconsin.

You may remember that there was much talk of something called the "efficiency gap," a new way to calculate and give definition to the asserted constitutional wrong. (I blogged about it here, here, and here. ) The Court said:

In the District Court, the plaintiffs’ case rested largely on a particular measure of partisan asymmetry—the “efficiency gap” of wasted votes. See supra, at 3–4. That measure was first developed in two academic articles published shortly before the initiation of this lawsuit. See Stephanopoulos & McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015); McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Leg. Studies Q. 55 (2014).

The plaintiffs asserted in their complaint that the “effi­ciency gap captures in a single number all of a district plan’s cracking and packing.” 1 App. 28–29, Complaint ¶5 (emphasis deleted). That number is calculated by sub­tracting the statewide sum of one party’s wasted votes from the statewide sum of the other party’s wasted votes and dividing the result by the statewide sum of all votes cast, where “wasted votes” are defined as all votes cast for a losing candidate and all votes cast for a winning candi­ date beyond the 50% plus one that ensures victory. See Brief for Eric McGhee as Amicus Curiae 6, and n. 3. The larger the number produced by that calculation, the greater the asymmetry between the parties in their efficiency in converting votes into legislative seats. Though they take no firm position on the matter, the plaintiffs have suggested that an efficiency gap in the range of 7% to 10% should trigger constitutional scrutiny. See Brief for Appellees 52–53, and n. 17.

The plaintiffs and their amici curiae promise us that the efficiency gap and similar measures of partisan asym­metry will allow the federal courts—armed with just “a pencil and paper or a hand calculator”—to finally solve the problem of partisan gerrymandering that has confounded the Court for decades. Brief for Heather K. Gerken et al. as Amici Curiae 27 (citing Wang, Let Math Save Our Democracy, N. Y. Times, Dec. 5, 2015). We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens. Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.

Consider the situation of Professor Whitford, who lives in District 76, where, defendants contend, Democrats are “naturally” packed due to their geographic concentration, with that of plaintiff Mary Lynne Donohue, who lives in Assembly District 26 in Sheboygan, where Democrats like her have allegedly been deliberately cracked. By all ac­counts, Act 43 has not affected Whitford’s individual vote for his Assembly representative—even plaintiffs’ own demonstration map resulted in a virtually identical dis­trict for him. Donohue, on the other hand, alleges that Act 43 burdened her individual vote. Yet neither the efficiency gap nor the other measures of partisan asymmetry offered by the plaintiffs are capable of telling the differ­ence between what Act 43 did to Whitford and what it did to Donohue. The single statewide measure of partisan advantage delivered by the efficiency gap treats Whitford and Donohue as indistinguishable, even though their individual situations are quite different.

That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitu­tionally prescribed role is to vindicate the individual rights of the people appearing before it.
The case is remanded to the District Court to give the plaintiffs a chance to use traditional standing doctrine — a concrete and particularized injury to themselves as voters as opposed to the innovative approach the Court rejected as a mere "generalized grievance" that does not form a basis for the exercise of judicial power.

ALSO: Here's something I wrote about the "efficiency gap" theory back when the district court decided the case (in November 2016):
[Haven't] Democrats...  gerrymandered themselves by living in Madison and Milwaukee? I can believe we are the most sharply geographically partisan state in the union. It didn't take power-grabbing legislators drawing new and devious lines to make that so. It can be partly or mostly the behavior of people choosing where to live and being like-minded with our neighbors.
In the 2012 elections, Republicans got 48.6% of the vote, but won  61% of the seats in the Wisconsin assembly. I said:
That's like the way Hillary Clinton won the popular vote in the presidential election: Democrats crowd together in smaller parts of the overall territory. The math doesn't prove the lines were drawn aggressively to take partisan advantage. The state lines never move, and we see, in the national election, the effects of the people who are Democrats gerrymandering themselves. I'm skeptical of this "clear mathematical formula" as a measurement of what happened in the minds of the line-drawers.
And again in January, 2017, I wrote:
This [efficiency gap] 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.

90 comments:

rehajm said...

Naturally packed. Heh. In oil, like sardines?

This whe thing reeks of two things- A: lefties cherry picking the metric to suit lefties and 2: Lefties trying to wait out Trump until they decide anything. 2 is of course an absurd thing to say. Absurd.

Henry said...

We need not doubt the plaintiffs’ math is quite droll.

Kristian Holvoet said...

Want to reduce or solve the efficiency gap? Increase the number of representatives. 5-10x more reps (2500-5000) would greatly reduce the ability to reliably gerrymander because smaller groups would be more susceptible to swings. More competitive districts, more choices, and more opportunity for coalitions of like minded districts across state boundaries (urban, rural, suburban, etc.) It would also require more overhead to reliably have voter fraud for state and national elections (need more judge of elections / district chair people involved, and the bigger the conspiracy the harder it is run WELL -- see also: government and big business).

WisRich said...

The efficiency gap is really a measure of how much court intervention the Dems need to win elections.

Jersey Fled said...

Wonder how this affects the Pennsylvania case. If the court is basically saying it's none of their business how legislative districts are drawn, how can a state supreme court overturn a map drawn by a duly elected legislature.

Todd Galle said...

We've been dealing with a districting situation in PA since our state Supreme Court decided that the Legislature isn't able to do it's job and assign districts for voting purposes. They decided to redraw them themselves. The legislature is Republican, the Court Democratic. Our legislature just moved a law to make the Judiciary more 'inclusive' by requiring judical candidates to be from geographically specific areas. No more will the Court be from Pittsburgh and Philadelphia, but from Cambria, Franklin, and Potter Counties. Of course, all the League of Women's Voters, ACLU, and most major papers think this is a horrible 'poison pill'. Why we still elect judges statewide is another question altogether.

Todd Galle said...


Thank you Jersey Fled.

Bill, Republic of Texas said...

I don't have an opinion about this case but I do have a strong aversion to gerrymandering. It is wrong for the politicians to be able to select their constituents. The constituents should be selecting their representative.

How we get there I don't know. At minimum any deviation from a natural compact district should raise s claim of gerrymandering.

Jim Gust said...

Why the remand? Why not just say, "you lose, go participate in the political process like everyone else"?

Char Char Binks said...

Gerrymandering has entered its Cubist phase.

Bill, Republic of Texas said...

Wasn't Pennsylvania based on the State's Constitution? Federalism in action. If the citizens don't like the decision let them vote judge's that agree with them.

Gahrie said...

Increase the number of representatives. 5-10x more reps (2500-5000)

There is actually an active constitutional amendment that would do this. It is one of the original 12 amendments proposed by Congress in Sept 1789, 10 of which became the Bill of Rights in December of 1791. The 11th one was finally passed in May 1992 and became the 27th Amendment. The last one is Article the First and it deals with representation in Congress. If it ever finally passes it would increase the House to around 6,000 members.

Ann Althouse said...

"Why the remand? Why not just say, "you lose, go participate in the political process like everyone else"?"

That's what Justice Thomas says in his separate opinion.

But the answer is that they relied on an aggressive, innovative theory, so they get a chance to try to succeed using the traditional approach. Whitford failed, because he lives in Madison, and his party will win under this or any other districting plan. But maybe one of the other plaintiffs can show the traditional vote dilution within his or her district and go forward on that more modest challenge, to that one district. The whole-state challenge -- the big dream of litigation -- was lost.

Sebastian said...

"His testimony points merely to his hope of achiev­ing a Democratic majority in the legislature"

And that wasn't enough to win?

Surprising.

Sebastian said...

"But the answer is that they relied on an aggressive, innovative theory, so they get a chance to try to succeed using the traditional approach."

So if your BS is brazen enough, you get to try again.

Jersey Fled said...

I further propose that we draw legislative districts on the basis of Catholic parishes and diocese.

Works for louisianna. And probably makes at least as much sense as the maps the politicians give us.

Todd Galle said...

Bill, ROT,
No, our State Constitution leaves reapportionment to the Legislature. I am away from work today, so don't have my library to hand, but this is a standard Legislative function. Our Supreme Court basically agreed, but didn't think the state legislature was capable of redrawing the borders in the fashion to which they thought would be best. Most of the toss-up districts they drew up favor the democrats.

Gahrie said...

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

Replace Gorsuch with an Obama nominee and are you so sure?

Original Mike said...

I am offended by the concept of “wasted vote”. If I vote for a particular candidate in a particular election, that vote does not “belong” to the candidate’s party. My vote belongs to me.

Lloyd W. Robertson said...

I'm pleased that Kennedy didn't try to make it a matter of free speech for individual voters, opening up the Electoral College, etc. I would think the bigger question is how Art. 1 s. 2, qualifications of voters to be determined by states, can be reconciled with Art. 1 s. 4, Congress can apparently overrule any state decision. States may allow aliens to vote, as they have done in the past, and this may apply even to federal elections (California may not be entirely honest about what is going on now); can Congress overrule any such state legislation? Some states may want to go more restrictive rather than less, voter ID, etc.

Bill, Republic of Texas said...

@Todd Galle,

That sounds like a problem the state legislature should address. I would guess impeachment should be on the table if the Supreme's usurped the constitutional power of the legislature.

I don't know anything about election laws and districting. But why would the USSC insert themselves into this dispute between separate branches of government in a state?

If this was such a clear overreach why aren't the people of Pennsylvania in streets? Why look to federal government to clean up your state?

Bill, Republic of Texas said...

I would think the bigger question is how Art. 1 s. 2, qualifications of voters to be determined by states, can be reconciled with Art. 1 s. 4, Congress can apparently overrule any state decision.

Maybe this is the solution to Pennsylvania's rogue court.

Seeing Red said...

Candidates actually have to persuade people and may be held accountable by their constituents. Shocking.

Let an impartial computer redraw the lines. No one likes that idea. Regrid the state.

Kevin said...

They lost when they used the academic-sounding "efficiency gap" name, thinking it wouldn't be perceived as political.

It was perceived exactly as political as it was.

Next time go all out. Call it a Diversity Index and scream that every judge who votes against "diversity" is a closet KKK member.

Yes, even that Oreo, Thomas.

Jack Wayne said...

As the Constitution specifically mandates a representative for every 30K people, I believe that only an amendment is justified to change the language. The Congress has usurped this power. The people and the Courts have acquiesced but that doesn’t make it right. With the right Court, a good lawyer could upend the current law.

Jersey Fled said...

Or further to my Catholic Church propasal, how about we just let Amazon draw the maps. I'm still amazed that they can design a distribution system that gives me free same day delivery on a Sunday night.

Democrats should be OK with either proposal. Aren't the Pope and Bezos particularly enamored by them (except for that abortion thing). We just need to work on the Republicans.

Kevin said...

Speaking of Thomas, I hope Trump appoints another very qualified black member to the court.

The Dems keep crying that Thomas is holding the "black seat" on the court unfairly. And since they believe strict diversity accounting means there should always be one, but no more than one, black SC justice, Thomas' "replacement" would already be on the court should he vacate during a Democrat Administration.

Adding another black justice also serves to let African Americans know they've been held back by affirmative action in all kinds of ways, and if the nonsense continues they're going to be out-actioned by Latinos very soon.

Todd Galle said...

Bill,
Not the US Supreme Court, our State Supreme Court. And yes, the conservative side of the PA legislature did bring Impeaching the justices. The howls from the usual suspects was impressive enough to shove them to the side. This state court decision took PA from a majority Rep state to a leans Dem.

Jersey Fled said...

Note to inga. I think I just used the word "enamored" incorrectly. The joke is on me.

Jack Wayne said...

The anti-federalists clearly saw that Congress could easily overturn any state law. They even pointed out that some State laws at the time about voter qualifications conflicted with the qualifications needed to run as a representative. Madison and Hamilton dismissed these concerns rather contemptuously. Our Constitution is rather poorly written and has become even worse over time.

Gahrie said...

As the Constitution specifically mandates a representative for every 30K people

*buzz* wrong. The Constitution says:

The number of Representatives shall not exceed one for every thirty Thousand (emphasis mine)

So Members of the House can represent more than 30 thousand people, they just can't represent fewer than 30 thousand.

Gahrie said...

Speaking of Thomas, I hope Trump appoints another very qualified black member to the court.

At one time I would have endorsed Condoleezza Rice for that role...

mccullough said...

There are more than a few Democrats in the suburbs. But not enough of them yet. So they want to pack the GOP voters into archipelago looking districts. Combine the suburbs with rural areas.

If blacks stopped voting Democratic the whole legislative drawing industry would come to a crash. They don’t have to vote GOP, but not voting Dem would crash the system.

The Constitution is silent on political parties. These cases should not be heard. You have to pack poor blacks together so they can get a black Dem like Maxine Waters or most of the other idiots from the CBC. Pelosi keeps those minstrels in line. The rich white lady tells the House Negroes what to do and let’s them lock the bowl once in awhile.



Gahrie said...

Every Democratic minority member of Congress (except Kamala Harris) comes from a Gerrymandered minority-majority district...a "safe' seat. Every Republican minority member of Congress comes from a White majority district.

Browndog said...

The Constitution is silent on political parties. These cases should not be heard.

The Constitution may be silent, but hundreds of years of precedent mandates Supreme Court Justices be heard.

You have to pack poor blacks together so they can get a black Dem like Maxine Waters or most of the other idiots from the CBC

The Voting Rights Act did that. Or, I should say the leftist interpretation that changed it from blacks having the right to vote for representation to blacks are mandated to win elections (no whites need apply).

gilbar said...

The classic voting district in North Carolina that went from High Point down to Charlotte; Along the Medium of I-85 was Ordered, By the Federal Courts so that it could be majority minority. It not only didn't include any houses that abutted on the interstate; It Didn't Include ANY of the Interstate (just the grassy medium. Woulsn't want any whitey to park their car on I-85 and say that they needed representation. Oh No, Just the Grassy Medium; for 75 Miles.

Why was that just fine, and Pennsylvania's bad? In the Immortal words of S.E. Hinton, THAT WAS THEN, THIS IS NOW

Tim in Vermont said...

They could have done this instead of Obamacare. It will happen one day, and it will be a shock to rural voters to know that, like in Upstate New York, your vote doesn’t matter.

Gahrie said...

Medium

Median

Bay Area Guy said...

Meh -- Roberts is bit weak here.

Yeah, these stupid Democrats don't have standing, true. But this is merely partisan politics, not a judicial question. When the Dems lose on the politics, they sue. They are good at lawfare. See Penn Supreme Court decision on gerrymandering.

But, I guess it coulda been worse.



IgnatzEsq said...

A good enough decision, but really the whole concept should be kicked out of court for good. The "efficiency gap" theory used essentially takes the results of the last election, determines the appropriate number of democrats that need to be elected, and redraws the lines to ensure that number of democrats are elected. How that is 'different' than gerrymandering seems academic to me.

Ignorance is Bliss said...

Bill, Republic of Texas said...

I don't know anything about election laws and districting. But why would the USSC insert themselves into this dispute between separate branches of government in a state?

Article IV of the US Constitution states that The United States shall guarantee to every State in this Union a Republican Form of Government...

So if a state supreme court significantly oversteps its bounds it could be seen as no longer being a republican form of government.

I'm not saying this case reaches that level. But it does give the US Supreme Court a way in, if they want it.

gilbar said...

Gahrie said... Median
Thanx Gahrie! It looked wrong when i wrote it; but i talked myself into it

Left Bank of the Charles said...

In Massachusetts, closing the efficiency gap would increase the number of Republicans in the legislature and the Congressional delegation.

BADuBois said...

So... for those of us who lean conservative, are we sad or glad?

Cassandra said...

Isn't it quite clear (albeit after an all too quick read) that this "decision" is merely a live to fight another day draw because the four liberals could not (yet) get Kennedy to conclude that there is some magical fix for the essentially political issue of gerrymandering. So, for the liberals, let's get Kennedy to agree to a remand while we demonize gerrymandering and instruct the plaintiffs on how to remedy the standing issue. And for the conservatives (for the most part) let's go along with that out of concern that if we do not do so Kennedy is likely to join with the liberals but with some meaningless (majority or fifth vote concurring) opinion that there is no mathematical formula but I know gerrymandering when I see it and I see it here and it must somehow be fixed. (And for Kennedy he does not have to write a useless "gerrymandering is bad and we must do something" opinion.) After all, in the rematch, for liberals Kennedy may yet be persuaded and for the conservatives Kennedy (or one of the liberals) may be gone.

Yancey Ward said...

I forget who above pointed it out, but it the actual key issue at hand in this decision- the Constitution is silent about political parties and/or factions. In other words, there is no right in the constitution to have either Democratic, Republican, or other representation in Congress, or in state legislatures. I wish the court had actually just thrown out the case on state rights grounds- if the Wisconsin state courts say the redistricting is ok, then that should be that. The reapportioning of Wisconsin's state legislative districts is a state matter.

Pennsylvania's case is a bit different in that we are talking about federal house districts- there the federal courts might well have a role, but in that case I think the only body with standing to sue would be the Pennsylvania legislative branch itself, not an individual.

Greg P said...

Sebastian said...
"His testimony points merely to his hope of achiev­ing a Democratic majority in the legislature"

And that wasn't enough to win?

Surprising.

Well, since Trump appointed Gorsuch, rather than Hillary appointing some Leftist, this time it wasn't enough


Bill, Republic of Texas said...
I don't have an opinion about this case but I do have a strong aversion to gerrymandering. It is wrong for the politicians to be able to select their constituents. The constituents should be selecting their representative.

I have a strong aversion to gerrymandering. Which is to say I favor compact, contiguous districts that honor physical and political boundaries.

Which is to say: don't split up cities and counties except to draw multiple districts, all but one of which are completely contained in the city / county.

If you have longstanding "districts" (for schools, etc.), don't break them up if you don't have to

Freeways, highways, rivers, etc. make good boundaries.

It just so happens that, at this point in time, following those neutral principles hurt the Democrats. Thus they come up with garbage like the "Efficiency Gap."

So long as Democrats are fighting for using the courts to counter-gerrymander, they should lose at every level, on every front

HoodlumDoodlum said...

It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitu­tionally prescribed role is to vindicate the individual rights of the people appearing before it.


Yes. Hell yes. I guessed Alito but it looks like Roberts wrote that one, huh? Thomas & Gorsuch joining most and Ginsberg, Bryer, and Sotomayor joining a Kagan concurrence.
Anyway nice work Court. Not only got one case right (I guess--I didn't go deep on the details myself) but correctly articulated an important principle here. Just, you know, make sure you actually follow it!

Original Mike said...

Blogger Left Bank of the Charles said...”In Massachusetts, closing the efficiency gap would increase the number of Republicans in the legislature and the Congressional delegation.”

So what?

Yancey Ward said...

The district court?. Was this case jumped directly to SCOTUS over the appeals level?

Yancey Ward said...

And make no mistake about this remand- it is only mostly unified because the four liberals on the court are buying time- if at any time they can get a fifth vote, they will abandon this morning's "concurrence".

Original Mike said...

Blogger Yancey Ward said...”I forget who above pointed it out, but it the actual key issue at hand in this decision- the Constitution is silent about political parties and/or factions. In other words, there is no right in the constitution to have either Democratic, Republican, or other representation in Congress, or in state legislatures.”

This. Votes don’t “belong” to the fucking parties.

Ignorance is Bliss said...

Greg P said...

It just so happens that, at this point in time, following those neutral principles hurt the Democrats.

To be honest, they didn't just follow those principles. They used those as constraints, and within those constraints they tried to find the redistricting that gave the best results for Republicans. Had the Democrats been in control of redistricting, they would have followed the same constraints ( although I suspect more loosely ) while maximizing the advantage for Democrats.

Something, something, victors and spoils.

I'd be fine with some additional rules beyond compactness and existing boundaries to limit gerrymandering. But those rules themselves would need to be neutral, not picked to favor one party or the other. Unless you can produce such a neutral rule, deciding these things via politics beats the alternative.

DR Judge said...

So when did justices become law clerks for one of the parties in a case? Kagan's concurrence tells them what to argue on remand (and tells the district panel how to frame its ruling).

David Blaska said...

Case in point, Wisconsin's 10th Senate District. Democrats took a seat in January by a comfortable 54-44% margin that had been Republican for 17 years, that went for retiring Sen. Sheila Harsdorf (appointed state ag secretary) with 63% in 2016, that Trump carried 55% to 38%. No cracking, no packing.

Seeing Red said...
This comment has been removed by the author.
Quaestor said...

The Supremes are so ignorant. Hasn't any decent non-deplorable person explained to them that partisan gerrymandering is criminally partisan when it benefits Republicans? Jeez, you'd think those ancient codgers never watch television.

Seeing Red said...

Progs want it all by hook or by crook. It’s my duty to resist because that’s patriotic. I don’t like living in cesspools.

Jack Wayne said...

You read it in a way to give Congress more power. I read it in a way to give the people more power. The original proposed 1st amendment is: “After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

What I notice is that even Madison thought his Constitution was a little light on details. And he thought more than 50K was too many for a representative.

Lewis Wetzel said...

This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.
It is also a blessing for democrats. It is their "supermajority" in enclaves, political and non-political, that gives them their cultural power.
Look at the way that progressive-dominated states like California, and progressive-dominated industries like entertainment and education lead the national conversation on topics from immigration to afirmive action. The American people are far to the right of where Democrats are in their prefered public policies, yet we have to live with progressive policies forced on everyone by a minority of voters.

Rabel said...

"You read it in a way to give Congress more power."

He read it the way it's written.

Rabel said...

Is Roberts up for the Ray Guy award this year? He sure does punt a lot.

Bay Area Guy said...

The Left has a 3-step approach to most issues:

1. If we win at the polls, great!
2. If we lose at the polls, sue!
3. If we lose at the polls and lose in the courts, riot!

madAsHell said...

“wasted votes” are defined as all votes cast for a losing candidate and all votes cast for a winning candi­ date beyond the 50% plus one that ensures victory.

I once submitted a paper for publication suggesting we establish the colon : as the brown number operator. I suggested that it be treated as both a binary operator, and unary operator. As a unary operator, the colon can be placed either pre- or post-operand.

Ryan said...

Professor Whitford was my first year contracts professor in law school. He was a great teacher and I loved his class (although I think he frightened a lot of students)!

Ryan said...

If Democrats didn't congregate into urban areas and college campuses like sheep... well they may not have these kinds of supposed problems.

Bill, Republic of Texas said...

the conservative side of the PA legislature did bring Impeaching the justices. The howls from the usual suspects was impressive enough to shove them to the side.

Isn't that the problem? The leftist break all the norms and conventions and the Repubs and conservatives roll over and surrender. They won't fight for their issues and beliefs.

The conservatives allowed the leftists to control the culture, education and media. Check-mate.

Rabel said...

In her dissent Kagan lain out a blueprint for the plaintiffs to follow in order to succeed in the future.

I wonder if she charged them for the legal advice.

I also wonder what the hourly billing rate is for Supreme Court Justices.

gilbar said...

I also wonder what the hourly billing rate is for Supreme Court Justices.
don't worry; she's already bought and paid for

MikeR said...

No standing. I don't understand these cases; is there someone who has standing to sue? Who is that?

Paul McKaskle said...

The "remand" is highly unusual in a standing case. In this situation there is no reason why these (or other plaintiffs) can't bring a new lawsuit raising the other possible theory (that the gerrymander harmed "first amendment association rights") but by simply remanding (so the plaintiffs can amend and allege this kind of harm) it goes back to the same three judge court that originally ruled for the plaintiffs. If a new suit were to be filed, it would have been assigned to a new three judge court that wouild be unlikely to have any of the original three judges. I wonder if the remand was the price of unanimity on the Court.

The concurrence (in reality a draft of the plaintiffs' brief on how the standing issue can be solved) seems to suggest that first amendment association rights may be the basis of a successful challenge of a gerrymander. Though this is an issue that Kennedy thinks might be a viable challenge, he didn't find it strong enough in the Veith case (involving Pennsylvania Congressional Districts) some years ago. He didn't join the concurrence in Whitford. But I suppose he must have been in favor of the remand. Curious.

I might add that as someone who has been involved in redistricting I think as bad as gerrymandering is, having a Court involved in "rectifying" the evil would be a mistake of the first order.

The Godfather said...

I understand why districting based on race could violate the Constitution (Amendments 13-15), but I cannot understand how districting based on POLITICS can be unconstitutional. Politics = Republic (or, if you prefer, = Democracy). That's our system of government. Political issues are decided by the politicians we elect. From Time Immemorial, the party in power has used control over redistricting to its benefit, whichever party it was. Sure, the party in power will use that power to its advantage, but we at least have a chance to vote them out of office if they abuse that power -- or any other power. But look at the discussion in the post and on this thread about the line-up of the Justices in this case. If there were a different composition of the Court, and we didn't like their ruling, we couldn't vote them out of office, could we? Where's Democracy then?

Greg P said...

Yancey Ward said...
The district court?. Was this case jumped directly to SCOTUS over the appeals level?

Yes, losing side at the district level has the ability to jump voting rights cases straight to the Supremes


6/18/18, 11:46 AM
Blogger Yancey Ward said...
And make no mistake about this remand- it is only mostly unified because the four liberals on the court are buying time- if at any time they can get a fifth vote, they will abandon this morning's "concurrence".

No, given a 5th vote the "concurrence", becomes a majority opinion going the other way. This is truly a "But Gorsuch"

It may also be a "but Kennedy". God I hope he retires at the end of this term

Francisco D said...

"That's what Justice Thomas says in his separate opinion.

I have an awful lot on my plate to really dig through this issue. I don't have the time or energy right now.

Hence, I am going to pull an Inga and rely on a trusted authority to do the thinking for me. In my case, It is Justice Thomas. He has always struck me as a clear and original thinker.

Greg P said...

Ignorance is Bliss said...
Greg P said...

It just so happens that, at this point in time, following those neutral principles hurt the Democrats.

To be honest, they didn't just follow those principles. They used those as constraints, and within those constraints they tried to find the redistricting that gave the best results for Republicans. Had the Democrats been in control of redistricting, they would have followed the same constraints ( although I suspect more loosely ) while maximizing the advantage for Democrats.


1: If I gave the impression I'm claiming the WI redistricters ONLY followed those neutral criteria, I apologize. i know they didn't

2: The point I was trying to make is that, in arguing for "the Efficiency Gap", the Democrats are arguing against all those neutral criteria, because those criteria do, at this time, favor the GOP

A quick look at IL shows what the Democrats want to do everywhere: create part city / part suburb districts where the city voters & a few Democrats voters in the suburbs stamp out the ability of the rest of the people to get representatives who care about them

President Pee-Pee Tape said...

The innumerate analysis in this piece notwithstanding, more states won't stand any longer for Republicans prioritizing choosing the voters over the voters getting to choose their reps. The gerrymander is real and can be measured by the efficiency of voting districts. Wasted votes are real and should be minimized. To argue against competitive elections is tacit approval of corruption and an admission that the party in power can't win on its merits. It's anti-democratic and states will take to eliminating this bullcrap regardless of whether in the case of this stupid WI suit they brought something without having standing.

Ralph L said...

I don't remember hearing of vote cracking. Is it done with a water cannon?

Seeing Red said...

Pee pees spewing again. Totally unclear on how the Republic works.

Gahrie said...

It may also be a "but Kennedy". God I hope he retires at the end of this term

I don't see Kennedy retiring as long as he is the swing vote. Breyer and RBG are clearly going to try and wait for a Democratic president. If either Breyer or RBG dies however, Kennedy's vote will become meaningless, and then he probably does retire.

President Pee-Pee Tape said...

And how is that, Seeing Yellow?

Earnest Prole said...

Yet neither the efficiency gap nor the other measures of partisan asymmetry offered by the plaintiffs are capable of telling the differ­ence between what Act 43 did to Whitford and what it did to Donohue.

The implication is that the efficiency gap will go down in flames on substance, not just standing.

Zach said...

The "wasted vote" theory was always a weird argument to me. The Constitution doesn't recognise the existence of political parties, except tacitly when it allows a unified ticket for President and Vice President. As far as it is concerned, every election for every office is distinct from every other election.

Now suddenly your vote for one candidate is supposed to be a proxy vote for every other candidate endorsed by the party that endorsed him? What if you just liked the guy personally? What if you can't stand his opponent? What if you care very deeply about the Federal funds for filling potholes on Main Street that your guy was able to bring home because he serves on the Transportation subcommittee?

For that matter, what if the guy was endorsed by two or more parties? What about Bernie Sanders, who runs as a socialist but caucuses with the Democrats? If he loses an election, *every* vote for a socialist is wasted! Call the gerrymander police and break up Vermont!

Elections can turn on very specific issues, and because they're done anonymously, there's nobody to tell us what a vote means except that one person preferred one candidate over another one time on one particular day.

narciso said...

Democrats have to win, when its the opposite, its butterfly ballot or diebold or russians

Greg P said...

President Pee-Pee Tape said...
The innumerate analysis in this piece notwithstanding, more states won't stand any longer for Republicans prioritizing choosing the voters over the voters getting to choose their reps. The gerrymander is real and can be measured by the efficiency of voting districts. Wasted votes are real and should be minimized.

Bullshit

We have a "first past the post" system where you vote for an individual, NOT a Party. Roberts trashed your delusion during the questioning, and again, as Earnest Prole noted, in his opinion

You Democrats want to shove yourself into one Party areas, that's your choice, your problem, and your loss

You vote "matters" to you? Great. Get out of the bubble

Achilles said...

President Pee-Pee Tape said...
The innumerate analysis in this piece notwithstanding, more states won't stand any longer for Republicans prioritizing choosing the voters over the voters getting to choose their reps. The gerrymander is real and can be measured by the efficiency of voting districts. Wasted votes are real and should be minimized. To argue against competitive elections is tacit approval of corruption and an admission that the party in power can't win on its merits. It's anti-democratic and states will take to eliminating this bullcrap regardless of whether in the case of this stupid WI suit they brought something without having standing.


Democrats are just mad their illegal voters in their corrupt deep blue cities can't flip enough elections to give them control over other people.

tommyesq said...

How would the wasted vote theory play out for third parties? Might have been a big boon for libeerarians, greens, etc.

Greg P said...

tommyesq said...
How would the wasted vote theory play out for third parties? Might have been a big boon for libeerarians, greens, etc.


Ding, ding ding!

Tommy FTW!

Of course, every good Dem knows that there are no legitimate "non-Democrat" votes. So they all get ignored, or added as "wasted Dem votes", depending on how dishonest they're feeling that day

mtrobertslaw said...

I also had Prof. Whitford for my first year contracts class. As I remember it, there was very little discussion about the actual legal rules that govern the interpretation of contracts. Instead, in a contract dispute between A and B, the was much discussion over whether A's or B's position would be more beneficial to society in general. As it turned out, the answer to that question was always determined by which position best advanced the goals of progressive liberalism.

Jim at said...

While Washington state has more than its share of insanity, redistricting isn't one.

Back in the early '80s, voters amended the state Constitution setting up a Citizens Redistricting Commission. Every 10 years, each caucus (House/Senate R/D) appoints a member of the public and there is a fifth, non-voting chair.

They hash it out after the census numbers come out and draw up boundaries for all 49 legislative districts and (now) 10 congressional districts. Meetings are open to the public and open to public comment.

When completed, the plan goes before the Legislature for an up or down vote. Can only be amended by a 2/3 vote of both houses.

Works like a charm. I can't think of a single time the courts had any say in it.

Jim at said...

How would the wasted vote theory play out for third parties?

Ask Inga.
And President Jill Stein.