[EL] Gerrymander Standard's implications for Evenwel case

Mon Jun 1 14:34:43 PDT 2015

Two quick points: First, it's quite possible to focus on voters in the
partisan gerrymandering context but on people in the equal population
context. The benchmark depends on the relevant legal theory, and not all
theories in this area emphasize people. For instance, VRA doctrine
prioritizes the citizen voting-age population over the total population
because it's interested in determining in which districts
minority-preferred candidates will actually be elected.

Second, the idea that a majority of voters should be able to elect a
majority of representatives clearly has something to it, which is why
Justice Breyer advocated it in *Vieth*. But this majority-majority rule,
standing alone, doesn't seem necessary or sufficient to establish that
unlawful gerrymandering has occurred. It doesn't seem necessary because
there can be gross unfairness even when the majority-majority rule is
satisfied -- e.g., if a party wins just over 50% of the vote but a much
larger share of seats. And it doesn't seem sufficient because nobody wants
to declare unconstitutional *all* wrong-winner outcomes -- e.g., if a party
wins 49% of the vote and 51% of seats.

Eric McGhee and I have a forthcoming article in the* University of Chicago
Law Review* -- see here
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2457468> -- that avoids
these difficulties by introducing a measure of partisan gerrymandering, the
efficiency gap, that is based on actual election outcomes rather than
hypothetical tied elections.

Nick

On Mon, Jun 1, 2015 at 2:43 PM, David Ely <ely at compass-demographics.com>
wrote:

> I agree. My thought on this was that in order for it to work it would need
> to be normalized (each district vote total = 1).  But I didn’t read the
> entry so I don’t know if they thought of it or what the details might be.
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Douglas
> Johnson
> *Sent:* Monday, June 01, 2015 11:36 AM
> *To:* law-election at uci.edu
> *Subject:* Re: [EL] Gerrymander Standard's implications for Evenwel case
>
>
>
>
>
> “The authors argue that the right to equal protection of individual voters
> implies that a majority of voters should be able to elect a majority of
> representatives”
>
>
>
> Isn’t that exactly the same point as the Texas plaintiffs are making in
> the Evenwel v. Abbott “one person, one vote” case?
>
>
>
> I remember calculating a few years ago that in an extreme case it could
> take only something like 21% of the votes cast in California Assembly
> elections to win a majority of the seats in the Assembly, because of the
> radical difference in the number of eligible voters among the districts.
>
>
>
> I share this not as an advocate of Evenwel (I have taken a position either
> way on that case), but rather as a caution against where groups may find
> themselves if they do not carefully consider the wider implications of the
> “competitiveness” measures they advocate.
>
>
>
> -          Doug
>
>
>
> Douglas Johnson, Fellow
>
> Rose Institute of State and Local Government
>
> at Claremont McKenna College
>
> douglas.johnson at cmc.edu
>
> 310-200-2058
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick Hasen
> *Sent:* Monday, June 1, 2015 6:06 AM
> *To:* law-election at UCI.edu
> *Subject:* [EL] ELB News and Commentary 6/1/15
>
>
>
> Posted in Celebrity Justice <http://electionlawblog.org/?cat=109>, Supreme
> Court <http://electionlawblog.org/?cat=29>
> Common Cause “Gerrymander Standard” Third Place Winner
> <http://electionlawblog.org/?p=72987>
>
> Posted on June 1, 2015 6:00 am <http://electionlawblog.org/?p=72987> by *Dan
> Tokaji* <http://electionlawblog.org/?author=5>
>
> As co-chairs of Common Cause’s inaugural Democracy Prize writing
> competition to identify the best “gerrymander standard”,
> <http://www.commoncause.org/issues/voting-and-elections/redistricting/gerrymander-standard-writing-competition.html>
>  it’s our privilege to announce the winners of the competition this week, as
> promised on Friday <http://electionlawblog.org/?p=72948>.  First up is
> our third-place entry, which is titled “A Discernable and Manageable
> Standard for Partisan Gerrymandering.” The authors are Anthony McGann
> from the University of Strathclyde
> <https://pure.strath.ac.uk/portal/en/persons/anthony-mcgann%28eb449683-abae-4596-b06c-61a406056f45%29.html>
> , Charles Anthony Smith
> <http://www.faculty.uci.edu/profile.cfm?faculty_id=5443> and Alex Keena
> <http://www.polisci.uci.edu/grad/students.php> from UC Irvine, and Michael
> Latner <http://cla.calpoly.edu/pols_michael_latner.html> from Cal Poly
> San Luis Obispo.
>
> This paper argues that the way to effectively combat partisan
> gerrymandering is to demonstrate that existing measures can be grounded in
> constitutionally protected rights. The authors argue that the right to
> equal protection of individual voters implies that a majority of voters
> should be able to elect a majority of representatives. They then show why
> this majority rule principle logically implies the partisan symmetry
> standard, which means that each party can elect the same fraction of
> legislative seats as the other party would receive if it had received the
> same percentage of voters. Finally, the authors explain how the partisan
> symmetry standard can be implemented.
>
> This paper sheds important light on theories for measuring gerrymandering
> with which the legal community is already familiar and comfortable. The
> authors effectively explain how these measurements illuminate the
> anti-democratic consequences of partisan gerrymandering, and how litigators
> can argue that the imbalance between votes and outcomes represents a
> constitutional violation.
>
> Congratulations to the third place winners. Read the paper’s introduction
> here.
> <http://www.commoncause.org/issues/voting-and-elections/redistricting/a-discernable-and-manageable.pdf>
>  The final version will be published in Election Law Journal this fall.
> And stay tuned. The second-place winner will be announced tomorrow and
> the first-place winner Wednesday.
>
> Norm Ornstein & Dan Tokaji
>
>
>
>
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-- 
Nicholas O. Stephanopoulos
Assistant Professor of Law
University of Chicago Law School
nsteph at uchicago.edu
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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