Wisconsin Gerrymandering

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538 did an excellent podcast on the upcoming Wisconsin gerrymandering case. Oral arguments are next week. This is one of the most significant cases for the Supreme Court in some time, imo.

Link below.
Sep 29, 2017 12:55 PM
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Sep 29, 2017 12:55 PM
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I got to see the Wisconsin Solicitor General, Misha Tseytlin, moot his oral argument before a panel of judges at Georgetown a couple of days ago. I can't really speak to the details of his performance, because of a confidentiality requirement, but I will say, I think there's a strong case on both sides. I tend to think it's just simply not justiciable; that there are both standing issues and political question issues, as well as serious questions about whether the petitioners have offered a judicially managable standard to involve the courts in partisan gerrymandering. In any case, it's fascinating because it's going to come down entirely on Kennedy, even more so than usual. In a prior partisan gerrymandering case, he was like, "I'll do something about it if people bring me the right way to deal with it." It's an open question whether this meets that test.
Sep 29, 2017 1:51 PM
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I am persuaded that if a partsisan gerrymander is deliberate and exteme enough, it violates the equal protection clause. I have a low opinion of arguments that fight the plantiffs on this level.

I think the real issue, which you highlighted and is the main focus of my link, is creating a standard to determine when a partisan gerrymander has occurred and is too extreme that the courts can use.

The problem here is the political science is imperfect and the research tools used ever improving. There's no bright line standard for this, nor will there ever be. The podcast mentions a methodology for distinguishing between 'natural" partisan sorting and deliberate reduction in voter power I read about that I hadn't dreamed of and wouldn't have even been possible not long ago. I'm sure any standard the courts could adopt will be rendered inferior by new methods in the near to medium term.

What persuaded me to favor adopting the efficiency gap anyway was the history and practice of racial gerrymandering jurisprudence. I now am confident the imperfect tools are enough and using them to strike down maps is a justifiable remedy to attempts to diminish the power of votes due to the political beliefs of voters.

Sep 29, 2017 3:37 PM
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If I had to guess, I think Kennedy could be persuaded by one of the secondary arguments, which is that in addition to the other problems with partisan gerrymandering, it is a now often a proxy for racial gerrymandering. Especially in the South, where party and race track really closely, politicians can now engage in outright gerrymandering under the pretext that it's just about party. Kennedy was already open to stopping partisan gerrymandering back in 2003, in Vieth, when he indicated that he would need a better standard in order to weigh in, but a lot has changed since then, particularly where he comes down on racial issues. Kennedy has basically flipped on affirmative action, and now talks a lot more about the 14th Amendment's unique elevation of race as a particular concern. He could therefore be more receptive to the racial element at play here.
Sep 29, 2017 3:43 PM
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What's happened over the past 20 years or so is data collection, computational power, and algorithm improvement have made creating ever more extreme gerrymanders possible. Anytime one party controls the goverment during a district drawing year, they can effectively lock the other party out of the legislature in all but the most extreme cases. Since the beneficiaries of those gerrymanders have a disproportionately likely chance of writing the next ones, they can sustain this for multi-decade cycles.

Over time, the country will self sort into extreme gerrymanders. It's mathematically inevitable if left unchecked. Places like North Carolina and arguably Wisconsin aren't even full democracies at this point. If this spreads across the US map, the country won't be. That leaves it far more vulnerable to autocratic takeover.

This court case aside, there has to be a legal remedy to it.
Sep 29, 2017 3:50 PM
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Esoteric AllusionWhat's happened over the past 20 years or so is data collection, computational power, and algorithm improvement have made creating ever more extreme gerrymanders possible. Anytime one party controls the goverment during a district drawing year, they can effectively lock the other party out of the legislature in all but the most extreme cases. Since the beneficiaries of those gerrymanders have a disproportionately likely chance of writing the next ones, they can sustain this for multi-decade cycles.

Over time, the country will self sort into extreme gerrymanders. It's mathematically inevitable if left unchecked. Places like North Carolina and arguably Wisconsin aren't even full democracies at this point. If this spreads across the US map, the country won't be. That leaves it far more vulnerable to autocratic takeover.

This court case aside, there has to be a legal remedy to it.

Well, what makes it a bit murkier is that there is a political solution to it. For example, Democrats could en masse register as Republicans. This sounds stupid, but it highlights the difference between party and something immutable like race.
Sep 29, 2017 4:03 PM
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NimChimpskyI got to see the Wisconsin Solicitor General, Misha Tseytlin, moot his oral argument before a panel of judges at Georgetown a couple of days ago. I can't really speak to the details of his performance, because of a confidentiality requirement, but I will say, I think there's a strong case on both sides. I tend to think it's just simply not justiciable; that there are both standing issues and political question issues, as well as serious questions about whether the petitioners have offered a judicially managable standard to involve the courts in partisan gerrymandering. In any case, it's fascinating because it's going to come down entirely on Kennedy, even more so than usual. In a prior partisan gerrymandering case, he was like, "I'll do something about it if people bring me the right way to deal with it." It's an open question whether this meets that test.


I wouldn't ask you to break confidentiality, but I am curious what the legal argument(s) is(are) FOR gerrymandering.? The law is essentially prioritization of rights and I cannot see an argument in this case that would be more compelling than right to vote/equal protection. Is it merely a question of how the courts could properly administer a corrective action?
Sep 29, 2017 4:21 PM
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NimChimpsky

Well, what makes it a bit murkier is that there is a political solution to it. For example, Democrats could en masse register as Republicans. This sounds stupid, but it highlights the difference between party and something immutable like race.

By legal remedy I meant either in the courts or by changes in laws on redistricting. I meant if this case does not deter the trend, then laws need to be passed. I prefer both outcomes, actually.

I've always thought the immutable distiction was dumb. One, race isn't actually immutable. Since it is a socially constructed phenomenon, it's possible to change the culture to erase or blend specific racial categories. Irish people are now thought of as white when they were not always. Asking people to deal with race by bending cultural attitudes is absurdly unrealistic of course, but so is the party behavior you describe.

Two, immutability has never been the correct ethical distiction in these cases. The immutability of being gay or Catholic should have never had any relevance to their legal protections.
Sep 29, 2017 4:22 PM
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HurricaneKid
NimChimpskyI got to see the Wisconsin Solicitor General, Misha Tseytlin, moot his oral argument before a panel of judges at Georgetown a couple of days ago. I can't really speak to the details of his performance, because of a confidentiality requirement, but I will say, I think there's a strong case on both sides. I tend to think it's just simply not justiciable; that there are both standing issues and political question issues, as well as serious questions about whether the petitioners have offered a judicially managable standard to involve the courts in partisan gerrymandering. In any case, it's fascinating because it's going to come down entirely on Kennedy, even more so than usual. In a prior partisan gerrymandering case, he was like, "I'll do something about it if people bring me the right way to deal with it." It's an open question whether this meets that test.

I wouldn't ask you to break confidentiality, but I am curious what the legal argument(s) is(are) FOR gerrymandering.? The law is essentially prioritization of rights and I cannot see an argument in this case that would be more compelling than right to vote/equal protection.? Is it merely a question of how the courts could properly administer a corrective action?

The other side is presented in the podcast I linked. There's three main prongs of attack. The first is a separation of powers argument that goes to a strong right of legislatures to determine how boundaries are drawn with a deep history of gerrymandering being tolerated. The second goes to the standing of plantiffs. The third goes to having a fair, actionable standard courts can use to determine that a gerrymander has occurred and can be struck down. You can't just argue that legislature seat proportions should just match state vote totals unless you are arguing that winner take all elections are unconstitutional. You need a more clever demonstration.

Wisconsin is a good case because the plantiffs got the Republican party dead to rights on a super-shady attempt to create as extreme of a gerrymander as possible, any political science tool that exists to detect that outcome shows it, and the effect is historically extreme.

The case is going to come down to whether Kennedy likes the efficiency gap method of measuring partisan caging.
Sep 29, 2017 4:32 PM
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I know one thing Misha Tseytlin has been saying in interviews is that the partisan splits are really the result of voter self-sorting in districts. This assertion is a flat out lie. I don't know how you can describe it otherwise. The reality is that self-sorting can explain a small fraction of the variance at best.

One thing that worries me is judges are frequently susceptibile to getting matters of basic empirical fact wrong. Law school didn't neccesarily help them develop a broad understanding of science and math. We have whole areas of law, how sex offenders are treated for example, because of SCOTUS scientific illiteracy. Forensic junk science convinces judges all the time. You hope the expert briefs convice on the basis of what is the best scientific argument, but that doesn't happen always.

Your asking people who might not have any aptitude for understanding political science to, in part, make a judgment about the science. That's embedded in evaulating the proposed standard. I don't see how you cannot hold your breath if you care about the outcome.
Sep 29, 2017 7:19 PM
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HurricaneKid
NimChimpskyI got to see the Wisconsin Solicitor General, Misha Tseytlin, moot his oral argument before a panel of judges at Georgetown a couple of days ago. I can't really speak to the details of his performance, because of a confidentiality requirement, but I will say, I think there's a strong case on both sides. I tend to think it's just simply not justiciable; that there are both standing issues and political question issues, as well as serious questions about whether the petitioners have offered a judicially managable standard to involve the courts in partisan gerrymandering. In any case, it's fascinating because it's going to come down entirely on Kennedy, even more so than usual. In a prior partisan gerrymandering case, he was like, "I'll do something about it if people bring me the right way to deal with it." It's an open question whether this meets that test.


I wouldn't ask you to break confidentiality, but I am curious what the legal argument(s) is(are) FOR gerrymandering.? The law is essentially prioritization of rights and I cannot see an argument in this case that would be more compelling than right to vote/equal protection. Is it merely a question of how the courts could properly administer a corrective action?

Mostly what EA said, but if you want to know precisely what the state is arguing, the brief is here: http://www.scotusblog.com/wp-content/uploads/2017/08/16-1161-ts.pdf. I can't talk about the moot, because I can't discuss what the judges thought were the weaker points, or how counsel responded to questions. The Supreme Court Institute, which moots every case coming before the Supreme Court, for the first side to seek their help, also helps by offering advice on how to improve the presentation of the arguments, which is also (importantly) confidential. But the actual legal arguments are certainly not a secret.
Sep 29, 2017 9:09 PM
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One of the things that's unique about the Wisconsin case is Republicans who orchestrated the gerrymander behaved like they were trying to cover up a major crime.

Those facts should be moot beyond establishing intent to gerrymander which the state wisely does not deny. How could they? While their slimey behavior shouldn't influence Kennedy, we know that judges are impacted by such things and it may cause some bias against them.
Sep 29, 2017 9:40 PM
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I don't watch every single case before the SCOTUS, but I gotta say I am tired of Justice Roberts' sociological speculation in his arguments that is almost invariably wrong. I'm not sure where that quirk of his comes from, but it's never over a central issue anyway.

ETA: Of course, in addition to his dubious speculation about the minds of citizens, he did refer decent scientific argument as "sociological gobbledygook," so it's nice to know the fate of democracy rests in his keen scientific mind.
Oct 4, 2017 12:28 AM
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Sam Wang and Brian Remlinger have an op-ed on this subject that very closely mirrors my thoughts:

http://prospect.org/article/slaying-partisan-gerrymander

My main concern at this point is the many competing models of detecting a extreme partisan gerrymander with different strengths as weaknesses may simply convince the courts that there's no non-arbitrary means to pick a standard and use that as justification for doing nothing even though some gerrymanders, especially Wisconsin's, are detected by any respectable standard. To me, that would be a quintessential example of letting the perfect be the enemy of the good. Followed to its logical ends, it would also impact previous court decisions on voting rights that require setting up guardrails with imperfect standards. Even one-man, one-vote does that.

The NYT has a good basic primer piece on the case here:

https://www.nytimes.com/2017/10/01/us/wisconsin-supreme-court-gerrymander.html

The aforementioned Wang I think is referred to in the "even a neuroscientist" line.
Oct 4, 2017 12:36 AM
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Based on what I saw, it?s going to be 5-4, striking down extreme cases of partisan gerrymandering on First Amendment grounds. But we might consider: isn?t the fact that some of the judges had no understanding of the social science more evidence that judges shouldn?t be the ones policing this?
Oct 4, 2017 1:36 PM
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NimChimpskyBased on what I saw, it?s going to be 5-4, striking down extreme cases of partisan gerrymandering on First Amendment grounds. But we might consider: isn?t the fact that some of the judges had no understanding of the social science more evidence that judges shouldn?t be the ones policing this?

As in many examples where judges are put in a position where they have to adjudicate empirical arguments despite lacking credentials or expertise to do so, I think we are left with the vexing question of, "If not them, then who?" We might be in a worst system, except all the others bind.
Oct 4, 2017 1:40 PM
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NimChimpskyBased on what I saw, it?s going to be 5-4, striking down extreme cases of partisan gerrymandering on First Amendment grounds. But we might consider: isn?t the fact that some of the judges had no understanding of the social science more evidence that judges shouldn?t be the ones policing this?

As opposed to...the legislators who are causing the problem in the first place?
Oct 4, 2017 1:47 PM
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Paris the Goat
NimChimpskyBased on what I saw, it?s going to be 5-4, striking down extreme cases of partisan gerrymandering on First Amendment grounds. But we might consider: isn?t the fact that some of the judges had no understanding of the social science more evidence that judges shouldn?t be the ones policing this?

As opposed to...the legislators who are causing the problem in the first place?


If you believe it?s inherently unjusticiable, then yes. I?m not sure how I sit on this one. I tend to lean toward courts getting involved for extreme cases where there is insurmountable entrenchment. But it?s not a slam-dunk case.
Oct 4, 2017 1:49 PM
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If it is left to the legislators, then people who stand to benefit from gerrymandering write the rules on gerrymandering. As gerrymandering tools improve, it's a near statistical certainty that this will cause entrenchment if there are no legal barricades in place to prevent it. If you believe that the courts fundamentally aren't Constitutionally empowered to overturn this, then I guess we've just found a potentially fatal flaw in the Constitution.

However, I think the Courts are empowered to strike down boundaries under the equal protection clause, so the practical problem of judges not being ideal for weighing in on complex scientific questions leaves me open to hearing out a better system if someone's got it while accepting we have to use the Constitutional tools that exist for us.
Oct 4, 2017 2:09 PM
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