[EL] Milhiser article on partisan gerrymandering

Fri Dec 5 08:47:17 PST 2014

We are not sure where Michael McDonald got such inaccurate information about the Florida redistricting trial.  Perhaps he was unable to find our expert reports online and jumped to the wrong conclusions. The judge did not allow any written expert reports into evidence.  We presented our reports orally at the trial over the course of two days of direct testimony. The plaintiffs relied heavily on the simulation analysis both at trial and in post-trial briefs.  

Indeed, the defense invested heavily in unsuccessful attempts to discredit the simulations. Early in the process, they sifted through thousands of maps and called into question the compactness of a handful of our districts.  In response, we generated a large number of simulations that were equally or more compact than the legislature's plan.  This settled the issue. We also produced a large number of simulations that were equally or more respectful of county and municipal boundaries than the legislature's plan.  Most importantly, we presented a large number of simulations that respected every possible interpretation of the VRA that might conceivably apply in Florida.  

Regardless of the approach, the result was the same: the legislature's plan was an extreme outlier relative to the non-partisan simulations.

Concerns about the fact that we did not draw every conceivable valid plan were not taken seriously at trial.  

We remain puzzled by the claim that a handful of maps submitted online by interest groups or college students with time on their hands would be a better baseline against which to measure a proposed plan.  Nevertheless, we also applied McDonald's favored crowd-sourcing approach in one of our reports by analyzing all of the plans submitted by "the public" through Florida's online interface.   

This analysis revealed that motivated Democrats and Republicans can indeed generate highly partisan plans that are beyond the tails of the distribution of the simulations.  One such plan caught our eye for its truly impressive bias.  This led to the discovery that an individual's gmail account had been used as a conduit, via the online "open redistricting" platform, to get plans drawn by political operatives into the hands of legislators.  The wisdom of crowds indeed.  

Perhaps for good reason, Judge Lewis was ultimately more impressed by this type of testimony than by any of the social scientific reports.  But by no means does this indicate that simulations cannot be useful in the courtroom. Our experience in Florida was quite to the contrary. 

Going forward, the demand for a non-partisan baseline in cases like these will remain strong, and crowd-sourcing is most likely not the answer.    

Jonathan

----- Original Message -----
From: "Michael McDonald" <dr.michael.p.mcdonald at gmail.com>
To: "law-election at UCI.EDU" <law-election at uci.edu>
Sent: Thursday, December 4, 2014 8:38:18 AM
Subject: Re: [EL] Milhiser article on partisan gerrymandering

In addition to the deficiencies of most automated algorithms failing to 
adhere to all legal requirements like the VRA, systems science research 
indicates that given current computing limits we cannot be sure plans 
produced by automated algorithms are indeed random. Thus, we cannot apply 
statistical tests. Furthermore, as defense lawyers vividly demonstrated in 
the recent Florida litigation by displaying a series of maps to impeach 
Rodden’s testimony, Chen and Rodden’s algorithm does not necessarily produce 
compact districts. This evidence was so damning that plaintiffs dropped 
Rodden’s testimony and expert report from their arguments. Which is to say, 
there are theoretical and implementation assumptions that underlie automated 
algorithms that go underappreciated by their proponents, which can lead to 
consequences when a bright light is shined upon them by opposing experts. 
(Ironically, defendant’s expert for Republicans in Florida was Nolan 
McCarty, the journal editor who published Chen and Rodden’s QJPS article 
that found Republicans didn’t gerrymander, which contrasted with the expert 
report for plaintiffs.)

For these reasons, Micah Altman (if I may speak for him) and I believe that 
while automated algorithms can illuminate alternative plans -- an idea first 
proposed by Nagel in 1965 -- human beings approach redistricting in 
fundamentally different ways that can explore a greater range of legal plans 
than what computers are capable of producing. For example, during Mexico’s 
recent redistricting humans repeatedly beat an optimization algorithm using 
simulated annealing (from a paper still in working form, but willing to 
share on request). Because these human-generated plans still cannot 
guarantee to randomly sample from the feasible set of redistricting plans, 
we cannot apply statistical tests to them. However, by the weak axiom of 
revealed preferences, human and computer-generated plans can reveal 
preferences of a redistricting authority, in that if a plan exists that 
beats an adopted plan on all metrics that the redistricting authority stated 
it cared about, and it differs on another criteria, say is more “fair”, then 
we can infer that the redistricting authority didn’t prioritize fairness. 
This approach is routinely used by the courts when they ask plaintiffs to 
produce a plan to correct alleged constitutional defects. This idea, in 
part, motivated our creation of open-source redistricting software called 
DistrictBuilder (www.districtbuilder.org), which supported public mapping 
advocacy efforts across the United States and was used by a few 
redistricting authorities, too.

Some papers on our approach of crowd-sourcing redistricting, and what these 
plans reveal about the preferences of redistricting authorities:

Public Participation GIS: The Case of Redistricting

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321870

The Promise and Perils of Computers in Redistricting

http://informatics.mit.edu/publications/promise-and-perils-computers-redistricting

Paradoxes of Political Reform: Congressional Redistricting In Florida

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2421908

Redistricting by Formula: An Ohio Reform Experiment

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2450645

A Half-Century of Virginia Redistricting Battles: Shifting from Rural 
Malapportionment to Voting Rights to Public Participation

http://informatics.mit.edu/publications/half-century-virginia-redistricting-battles-shifting-rural-malapportionment-voti-0

============
Dr. Michael P. McDonald
Associate Professor
University of Florida
Department of Political Science
234 Anderson Hall
P.O. Box 117325
Gainesville, FL 32611

phone:   352-273-2371 (office)
e-mail:  dr.michael.p.mcdonald at gmail.com
web:      <http://www.electproject.org/> www.ElectProject.org
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu 
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Nicholas 
Stephanopoulos
Sent: Wednesday, December 03, 2014 11:08 AM
To: Rob Richie
Cc: law-election at UCI.EDU
Subject: Re: [EL] Milhiser article on partisan gerrymandering

More comprehensive versions of the Duke study have been carried out by Jowei 
Chen and Jonathan Rodden (see here 
<http://www-personal.umich.edu/~jowei/florida.pdf> ) and Roland Fryer and 
Richard Holden (see here 
<http://www.stat.columbia.edu/~gelman/stuff_for_blog/fryer.pdf> ). None of 
these studies takes the VRA into account (or, for that matter, other common 
criteria such as respect for political subdivisions and respect for 
communities of interest). So I think it's fair to say that we don't know 
what the partisan implications of randomly drawn lawful plans would be. We 
know what the partisan implications are of randomly drawn and maximally 
compact plans, but these aren't the same thing as legally valid plans.
On the issue of gerrymandering more generally, Eric McGhee and I have a 
forthcoming article (see here 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2457468> ) in which we 
introduce a new measure of partisan distortion and argue that it could serve 
as the basis for a legal test. We're responding not to Vieth but rather to 
the favorable comments by five Justices in LULAC about the concept of 
partisan symmetry.

Nick

On Wed, Dec 3, 2014 at 5:30 AM, Rob Richie <rr at fairvote.org> wrote:

The mathematicians' failure to acknowledge the Voting  Rights Act is just 
one indicator of how  such simulations are only  as good as the assumptions 
that govern them. Worth doing and discussing, but not to be accepted without 
an understanding of the impact of those assumptions.

Anther example in the article is that it is based on analyzing the actual 
votes cast in House races rather than the more indicative relative 
presidential vote. The 2012 elections included some over-performing 
Democratic candidates including one incumbent who received more than 20% of 
votes from backers of Mitt Romney -- an extraordinarily high crossover vote 
in today's partisan climate that didn't continue this year.

I'll also address one lurking  part of this discussion: the myth that 
section two of the Voting Rights Act is the cause of the Democrats' problems 
in the South. That certainly was true in the past,  but it is not today 
absent adoption of independent redistricting commissions. That is, the need 
to create majority-minority districts is the only reason that Republicans 
drew plans that allows Democrats to win any congressional seats at all in 
Alabama, Louisiana, Mississippi and South Carolina. Republican mapmakers 
also could have knocked Democratic representation down two seats in Georgia 
and one seat each in North Carolina and Tennessee. (We show this in some 
alternative southern congressional districts 
<http://www.fairvote.org/assets/Uploads/Redistricting-Reform-in-the-South.pdf> 
map work we did earlier in the year.)

As it is, the combination of single winner districts, polarized voting and 
partisan  control of redistricting makes most of the South a true basketcase 
when it comet representative democracy in congressional elections. Note that 
when we issued our final November 2016 election projections 
<http://www.fairvote.org/research-and-analysis/congressional-elections/fairvotes-projections-for-u-s-house-elections-in-2016/> 
earlier this month (on November 6th, more than two years before the 2016 
elections), we projected winners in more than 85% of districts using a 
methodology that resulted in a single error in more than 700 projections in 
2012-2014.

In the South, the numbers are  extraordinary -- setting aside Florida and 
Virginia, there are 126 districts in the remaining southern states and the 
border  states of Kansas, Missouri, Kentucky and West Virginia. We project 
winners in 125 of them; if all these seats were open, we'd still project 123 
of them. The prospects of redistricting reform in any of these states is 
very slight without Congress asserting its power over the time, place and 
manner of elections -- something it onl  is using right now involving 
redistricting  to mandate gerrymandering (that is, mandate single-winner 
districts, as it required in 1967).

Rob Richie

On Wed, Dec 3, 2014 at 1:29 AM, Douglas Johnson <djohnson at ndcresearch.com> 
wrote:
Such studies have been done for decades. In fact the difference between the 
party getting more votes and the party getting more seats was fairly central 
to many of the arguments (though not to the ruling) in the Tom Delay Texas 
re-redistricting case. There is no “genius” to such analysis, despite 
Millhiser’s use of that term.

The more simplistic versions of such studies (including this Mattingly and 
Vaughn study) completely ignore the requirements of the Voting Rights Act. 
In fact, the phrase “voting rights act” never even appears in the Mattingly 
and Vaughn paper. The only remote reference to it is “The two districts with 
largest African American representation had on average around 36% and 32% 
African American population, which compares favorably to the state wide 
percentage of 22%, but not to the current districts.” That sounds to me 
either like a total failure to understand the VRA, or a knowing attempt to 
distract reporters from recognizing that they’re deliberately ignoring the 
VRA despite the VRA’s significant impact on the redistricting plan in 
question.

Millhiser specifically condemns redistricting plans that “are almost 
certainly the product of a legislature that carefully designed the maps to 
produce a desired result.” But that is exactly what the VRA requires – on a 
racial/ethnic and language front. The difficulty is not in proving that 
redistricting plans are not random (or at least that they’re not the 
most-compact plan possible). The difficulty is in proving the plans are 
drawn for partisan purpose, as opposed to drawn ensure compliance with the 
VRA or to follow city, county, or other community of interest boundaries. 
The filings in Vieth  provide a look at a variety of potential tools for 
such analysis. Millhiser and Vaughn do not.

This is a topic in desperate need of good solid analysis and study. I often 
describe Vieth as the Supreme Court’s version of a “Call for Papers.” 
Unfortunately neither the article nor the study qualify as such.

-          Doug

Douglas Johnson, Fellow
Rose Institute of State and Local Government
at Claremont McKenna College
 <mailto:douglas.johnson at cmc.edu> douglas.johnson at cmc.edu
 <tel:310-200-2058> 310-200-2058

 <http://electionlawblog.org/?p=68747> “If The Supreme Court Reads This 
Study, It Could End Partisan Gerrymandering Forever”

Posted on  <http://electionlawblog.org/?p=68747> December 2, 2014 8:10 am by 
<http://electionlawblog.org/?author=3> Rick Hasen
 <http://thinkprogress.org/justice/2014/12/01/3597643/this-study-could-end-the-worst-kinds-of-gerrymandering-if-the-supreme-court-took-the-time-to-read-it/>Ian Millhiser writes.I was surprised to see no mention of Voting Rights Act requirements indrawing these districts._______________________________________________Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election_______________________________________________Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election--Nicholas O. StephanopoulosAssistant Professor of LawUniversity of Chicago Law Schoolnsteph at uchicago.edu(773) 702-4226http://www.law.uchicago.edu/faculty/stephanopoulos