[EL] ELB News and Commentary 2/12/18

Rick Hasen rhasen at law.uci.edu
Sun Feb 11 21:13:03 PST 2018 

“Election Security in All 50 States”–New CAP Report and Big Monday Event<http://electionlawblog.org/?p=97448>
Posted on February 11, 2018 9:08 pm<http://electionlawblog.org/?p=97448> by Rick Hasen<http://electionlawblog.org/?author=3>

Center for American Progress:<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/>
By Danielle Root<https://www.americanprogress.org/about/staff/root-danielle/bio/>, Liz Kennedy<https://www.americanprogress.org/about/staff/kennedy-liz/bio/>, Michael Sozan<https://www.americanprogress.org/about/staff/sozan-michael/bio/>, and Jerry Parshall<https://www.americanprogress.org/about/staff/parshall-jerry/bio/>

In 2016, America’s elections were targeted by a foreign nation-state intent on infiltrating and manipulating our electoral system. On September 22, 2017, it was reported that the U.S. Department of Homeland Security (DHS) notified 21 states that were targeted by hackers during the 2016 election.1<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-1> Among those states notified by DHS were: Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Minnesota, Ohio, Oklahoma, Oregon, North Dakota, Pennsylvania, Virginia, and Washington.2<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-2> Arizona, California, Iowa, Texas, and Wisconsin were also among those states originally contacted by DHS. However, those states have denied that their election systems were attacked.3<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-3> Ultimately, hackers only reportedly succeeded in breaching the voter registration system of one state: Illinois.4<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-4> And while DHS did not name those responsible for the attempted hacks, many believe the culprits can be traced back to Russia.5<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-5> Experts have warned that a future attack on our election infrastructure, by Russia or other malicious actors, is all but guaranteed.6<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-6>

By now, the American people have been alerted to many vulnerabilities in the country’s election systems, including the relative ease of voting machine hacking,7<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-7> threats to voter registration systems and voter privacy,8<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-8> and disinformation campaigns waged by foreign nation-states aimed at confusing voters and inciting conflict.9<https://www.americanprogress.org/issues/democracy/reports/2018/02/12/446336/election-security-50-states/#fn-446336-9> If left unaddressed, these vulnerabilities threaten to undermine the stability of our democratic system….

The main takeaway from the Center for American Progress’ research and analysis is that all states have room for improvement:
·         Fourteen states use paperless DRE machines in at least some jurisdictions. Five states rely exclusively on paperless DRE machines for voting.
·         Thirty-three states have post-election audit procedures that are unsatisfactory from an election security standpoint, due either to the state’s use of paperless DRE machines, which cannot be adequately audited, or other factors. At least 18 states do not legally require post-election audits or require jurisdictions to meet certain criteria before audits may be carried out.
·         Thirty-two states allow regular absentee voters and/or U.S. citizens and service members living or stationed abroad to return voted ballots electronically, a practice deemed insecure by election and cybersecurity experts.
·         At least 10 states do not provide cybersecurity training to election officials.

This point cannot be overemphasized: Even states that received a B or a C have significant vulnerabilities that leave them susceptible to hacking and infiltration by sophisticated nation-states. However, by making meaningful changes to how elections are carried out, states can improve their overall election security while supporting public confidence in election procedures and outcomes…..

And this event<https://www.americanprogress.org/events/2018/01/29/445569/election-security-50-states-defending-americas-elections/> Monday:

Due to popular demand this event is full and we are no longer accepting RSVPs. Please tune in to the livestream<http://app.mx3.americanprogressaction.org/e/er?s=785&lid=200706&elqTrackId=79dafba89f1c4397b8e31494fdb2b656&elq=1d8994f3345f4c7a90d91ddc8466d12f&elqaid=36824&elqat=1> of this event!

In 2016, Russia sought to breach the U.S. elections, including attempting to hack into many states’ election systems. Fourteen months later, despite many states taking proactive measures, U.S. election infrastructure remains vulnerable to attacks. Without leadership from this administration to defend America’s elections from attacks by sophisticated enemies who want to undermine our democratic process, the necessary funding and resources to protect future elections have not been forthcoming. Despite bipartisan efforts in Congress to bolster election security and provide needed funding, legislation remains blocked.

The Center for American Progress is releasing a report on election security preparedness in all 50 states, assigning grades to each state. CAP’s research and report card are designed to identify and provide information on strengths and shortcomings in each state’s election security preparedness. A better understanding of how each state can improve its election security preparedness can help build urgency for appropriate solutions and arm stakeholders with information to demand increased security measures.

Please join CAP for a discussion about best practices and the vulnerabilities in election infrastructure that threaten to undermine America’s free and fair elections—the cornerstone of our self-government. We will feature major figures on the front lines of this important national security issue.

Introductory remarks:
Neera Tanden<https://www.americanprogress.org/about/staff/tanden-neera/bio/>, President and CEO, Center for American Progress

Keynote remarks:
Sen. Amy Klobuchar<https://www.klobuchar.senate.gov/public/index.cfm/about-amy> (D-MN)

Part I: Armchair discussion:
Jeh Johnson<https://www.paulweiss.com/professionals/partners-and-counsel/jeh-charles-johnson>, former U.S. Secretary of Homeland Security

Moderated by:
Neera Tanden<https://www.americanprogress.org/about/staff/tanden-neera/bio/>, President and CEO, Center for American Progress

Part II: Panel discussion:
Judd Choate<http://techonomy.com/people/judd-choate/>, Director of Elections, State of Colorado
Edgardo Cortes, former Commissioner of Elections, Commonwealth of Virginia
Jamil Jaffer<https://www.law.gmu.edu/faculty/directory/adjunct/jaffer_jamil_n>, Founder, National Security Institute, George Mason University Law School

Moderated by:
Winnie Stachelberg<https://www.americanprogress.org/about/staff/stachelberg-winnie/bio/>, Executive Vice President, External Affairs, Center for American Progress


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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“The mysterious oppo researcher working in the White House lawyer’s office”<http://electionlawblog.org/?p=97446>
Posted on February 11, 2018 8:55 pm<http://electionlawblog.org/?p=97446> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2018/02/11/trump-oppo-researcher-roman-403138?cid=apn> on Mike Roman, of New Black Panthers and Koch Brothers fame.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


Liberal Wisconsin Supreme Court Candidate Speaking Out on Judicial Issues in Ways Some Find Troubling<http://electionlawblog.org/?p=97443>
Posted on February 11, 2018 8:51 pm<http://electionlawblog.org/?p=97443> by Rick Hasen<http://electionlawblog.org/?author=3>

Fascinating Patrick Marley report<https://www.jsonline.com/story/news/politics/2018/02/09/tim-burns-keeps-liberal-view-prominent-inruns-wisconsin-supreme-court-democrat-talks-bluntly-issues/323199002/> in the Milwaukee Journal-Sentinel.  Usually it is conservatives pushing the envelope on judicial campaign speech. But now there’s this:

Tim Burns is doing what state Supreme Court candidates have long avoided — telling voters what he thinks of the issues of the day.

He fears the voter ID law disenfranchises minorities.

He believes the state’s $3 billion incentive package for Foxconn Technology Group is a raw deal for taxpayers.

And Burns — who is advertising that he’s a Democrat<https://www.jsonline.com/story/news/politics/2018/02/07/wisconsinstate-supreme-court-candidate-tim-burns-emphasizes-hes-democrat-goes-after-scott-walker-tv/313133002/> in the officially nonpartisan race — thinks the state’s high court has titled its decisions to corporations instead of the average person.

This isn’t normal. Typically, court candidates avoid overtly stating their political affiliation or directly talking about issues that might come before them as justices — although they often provide hints about their leanings.

Burns contends the traditional approach isn’t fair to voters and has contributed to liberals losing court races most of the time over the past decade. His opponents say his method of campaigning raises questions about his ability to be impartial and would bar him from hearing certain cases.

Burns is an attorney in the Madison office of the national law firm Perkins Coie who specializes in suing insurance companies<https://www.jsonline.com/story/news/politics/2018/02/08/tim-burns-hopes-join-state-supreme-court-but-has-only-had-one-case-wisconsin-court/307985002/>. His opponents are Milwaukee County Circuit Judge Rebecca Dallet and Sauk County Circuit Judge Michael Screnock.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>


Jeff Wice Letter to NYT Editor on NYC Redistricting<http://electionlawblog.org/?p=97441>
Posted on February 11, 2018 8:43 pm<http://electionlawblog.org/?p=97441> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<https://www.nytimes.com/2018/02/11/opinion/redistricting.html?rref=collection%2Fsectioncollection%2Fopinion-letters&action=click&contentCollection=letters&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=sectionfront>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Pa. Republicans have proposed a new congressional map. Democrats say it’s still gerrymandered.”<http://electionlawblog.org/?p=97439>
Posted on February 11, 2018 9:35 am<http://electionlawblog.org/?p=97439> by Rick Hasen<http://electionlawblog.org/?author=3>

Philly.com:<http://www.philly.com/philly/news/politics/state/pa-proposed-new-congressional-map-gerrymandering-case-20180211.html>

 A proposed new map of Pennsylvania congressional districts may have sanded off some of the rougher edges of the current version, but it still amounts to a pro-Republican gerrymander, a chorus of Democrats complained Saturday as they urged Gov. Wolf to reject it.

The governor, whose administration is combing through the proposal with the advice of a prominent mathematics professor, is expected to announce his position on the new map early this week.

Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny), the leaders of the GOP-controlled legislature, submitted the map Friday night in an effort to meet the deadline in a state Supreme Court order to redraw the current boundaries.

“The map that Republicans put forward last night does practically nothing to fix the partisan gerrymandering that the Pennsylvania Supreme Court found violated the state’s constitution,” Eric Holder, former U.S. attorney general and chairman of the National Democratic Redistricting Committee, said in a statement.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Restrictive voter ID laws are no match for this group”<http://electionlawblog.org/?p=97437>
Posted on February 11, 2018 9:33 am<http://electionlawblog.org/?p=97437> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/politics/politics-news/restrictive-voter-id-laws-are-no-match-group-n845291?cid=sm_npd_nn_tw_np> on the fantastic VoteRiders organization:

As the midterm elections approach, a small army of organizers will be answering calls and knocking on doors in hotly contested districts around the country with a simple question: Do you have what you need to vote?

Plenty of groups, including the ACLU, have used the judicial system to take aim against the growing number of strict voter identification laws, attempting to convince the courts they unfairly target certain groups, particularly low-income voters, minorities, senior citizens and people with disabilities.

But VoteRiders<https://www.voteriders.org/>, a nonpartisan nonprofit based in California, takes a different tack.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“We the People, or We the Voters?”<http://electionlawblog.org/?p=97435>
Posted on February 11, 2018 9:05 am<http://electionlawblog.org/?p=97435> by Rick Hasen<http://electionlawblog.org/?author=3>

Joey Fishkin:<https://balkin.blogspot.com/2018/02/we-the-people-or-we-the-voters.html>

Our Constitution, as amended, requires that every ten years the federal government reallocate seats in the House of Representatives to the states “according to their respective numbers, counting the whole number of persons.”  This provision leaves little room for interpretation.  It is part of what my colleague Sandy Levinson calls the “constitution of settlement.”  But like much of the constitution of settlement, this provision settles certain questions while leaving other closely proximate ones unsettled.  The settled part is this: We do not apportion representatives to states on the basis of how many citizens, voting age citizens, eligible voters, or registered voters the state may have.  Instead we use total population.  Under our Constitution, for purposes of congressional apportionment, we count children, non-citizens, disenfranchised felons, and all other non-voters.  If you are living in a U.S. state, and you are a person rather than a tree<https://supreme.justia.com/cases/federal/us/377/533/case.html>, you count.

This makes a huge difference.  These days, the total population rule in the Constitution moves power within Congress in a distinctly Southwesterly direction, compared to where it would be if we didn’t count all those children and non-citizens.  According to my back of the envelope calculations, if we apportioned House seats by citizen voting age population (CVAP), my state of Texas would immediately lose four seats.  California would lose five.  Those seats would go instead to states with higher CVAP-to-total-population ratios, which is another way of saying states with fewer children and fewer immigrants—states like Pennsylvania and Montana.*  This will not happen.  Congressional apportionment by CVAP is a nativist pipe dream, unambiguously unconstitutional.

That much is settled.  But, the constitutional rule does not by its express terms settle anything else.  As a matter of political practice, and in the shadow of the constitutional rule, all U.S. states sensibly use total population, as well, for drawing congressional district lines within states—and also for their own state and local iterations of apportionment and redistricting.  But conservative policy entrepreneurs have begun to challenge this practice, beginning at the state and local level.  Ed Blum, the great conservative impact-litigation impresario<https://www.nytimes.com/2017/11/19/us/affirmative-action-lawsuits.html>, brought the case of Evenwel v. Abbott<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/> to the Supreme Court in 2016, challenging Texas’ use of total population for state legislative districting.  He lost, but in a way that did not entirely resolve the question of what would happen if he had a state or local government on his side.  The next logical move will be for some jurisdiction, in 2021, to attempt to use CVAP or some other less-than-total-population measure for apportionment, drawing districts with different numbers of people, but equal numbers of “voters.”**

The argument for counting voters instead of people gains its political salience from the increasing centrality of immigration to both Republican and Democratic party politics—and the increasingly clear sense that areas with lots of children and lots if immigrants support Democrats while older areas with fewer immigrants support Republicans.  But the argument gains its conceptual and legal plausibility from a different place: the strangely undertheorized nature of virtual representation—the representation of non-voters—in modern conceptions of democracy.  Or so I argue in a new essay just posted to ssrn on “Taking Virtual Representation Seriously<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3118775>”; I’ll say a little more about this point after the jump.
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Posted in voting<http://electionlawblog.org/?cat=31>


“Top Republicans in Pa. House, Senate submit congressional map to Gov. Wolf”<http://electionlawblog.org/?p=97433>
Posted on February 10, 2018 10:26 am<http://electionlawblog.org/?p=97433> by Rick Hasen<http://electionlawblog.org/?author=3>

Philly Inquirer:<http://www.philly.com/philly/news/politics/state/pennsylvania-republicans-gerrymandering-congressional-map-supreme-court-20180209.html>

 Facing a deadline imposed by the Pennsylvania Supreme Court, the legislature’s two top Republicans late Friday submitted to the governor a new statewide map of congressional districts to replace boundaries the justices ruled were unconstitutional.

If approved, the map submitted by Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) would result in significant changes for the areas surrounding Philadelphia and Pittsburgh. The proposed map “complies fully” with the court’s order, the pair said in a joint statement.

But within roughly an hour of its public release, top Democrats in the House and the Senate were urging Democratic Gov. Wolf to “reject it outright.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>
“Pa. to require voting machines with paper backup”<http://electionlawblog.org/?p=97431>
Posted on February 10, 2018 10:23 am<http://electionlawblog.org/?p=97431> by Rick Hasen<http://electionlawblog.org/?author=3>

Good news.<http://www.pennlive.com/politics/index.ssf/2018/02/pa_to_require_voting_machines.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


“Pennsylvania has to draw new congressional districts, but getting rid of gerrymandering will be harder than you think.”<http://electionlawblog.org/?p=97429>
Posted on February 9, 2018 12:47 pm<http://electionlawblog.org/?p=97429> by Rick Hasen<http://electionlawblog.org/?author=3>

Bernie Grofman and Jonathan Cervas<https://www.washingtonpost.com/news/monkey-cage/wp/2018/02/09/now-pennsylvania-has-to-draw-new-house-districts-but-getting-rid-of-gerrymandering-is-harder-than-you-think/?utm_term=.81942c3f8d33> for the Monkey Cage:

A map that meets all these criteria will probably reduce the Republican Party’s advantage in the state’s congressional races. Although the two parties poll more or less equally statewide, Republicans hold 13 of the state’s 18 seats in Congress. As is true nationwide, Democrats are clustered around the major cities — Philadelphia and Pittsburgh — while Republicans are spread more broadly around the state. A new, nonpartisan district map would almost certainly give Pennsylvania Democrats a better chance at holding more House seats.

But eliminating gerrymandering is not as straightforward as you might think

There are at least two important legal issues the court would have to tackle in a new map.

First, partisan gerrymandering is like cancer: Sometimes the signs are obvious, but sometimes no signs can be seen. Districts that are bizarrely drawn and unnecessarily fragment existing political boundaries such as townships and counties almost always indicate partisan gerrymandering. But sometimes districts satisfy good-government criteria on their face and nonetheless have egregious partisan intent and effects. The court will have to watch out for such maps, lest it approve what we might call “stealth” gerrymandering.

With that in mind, the Pennsylvania Supreme Court needs to decide whether to evaluate the likely political consequences of proposed plans to prevent such “stealth” gerrymanders. Political science can pretty reliably tell us the likely results of a potential district — understanding, of course, that competitive districts can shift from one election cycle to another, depending on the electoral tides — and understanding that incumbents can be favored beyond the party’s baseline support.

Should redistricting be “neutral” or “fair”?

Second, the court will need to ask whether it is looking for a “neutral” plan or a “fair” plan. “Neutral” treatment involves applying good-government criteria to a map without considering the partisan consequences. A “fair” map is drawn to try to keep the partisan results — in this case, the congressional delegation — more or less in line with the state’s partisan leanings. In other words, if roughly 50 percent of the state population favored party X, a “fair” map would result in party X holding roughly 50 percent of the state’s congressional seats. But if supporters of party X were concentrated in just one or two parts of the state<http://www-personal.umich.edu/~jowei/florida.pdf>, a “neutral” plan might result in party X holding well under 50 percent of the state’s seats.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Breaking: 4th Circuit, on 2-1 Vote, Grants Emergency Stay in North Carolina Judicial Primaries Case, Raising Potential for Some Election Confusion<http://electionlawblog.org/?p=97427>
Posted on February 9, 2018 10:08 am<http://electionlawblog.org/?p=97427> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s what I reported on Jan. 31:

Federal District Court Issues Preliminary Injunction Barring NC Legislature’s Elimination of Partisan Primaries for Electing State Appeals and State Supreme Court Judges<http://electionlawblog.org/?p=97277>
Posted on January 31, 2018 12:06 pm<http://electionlawblog.org/?p=97277> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the opinion here<https://drive.google.com/file/d/10tu98Ev5YuncO5CsoiHGehGCL4o3eJnQ/view>.

In light of the state apparently offering no reason at all for why it made this change as to appellate judges, the federal court’s decision makes a lot of sense. It might be a very different case if the state came forward with important reasons for the change. As it is, the system looks to create bedlam at the polling place:

Further, the character and magnitude of S.L. 214’s burden is more substantial for appellate judges than for local judges. These judges run statewide, and in 2018 these partisan races will lead the statewide ticket.10 The legislature has decided that judicial races should be partisan, but by giving candidates complete control over party designation, abolishing primaries of any kind, and failing to provide another mechanism for reducing the number of candidates on the general election ballot, the partisan political parties are restricted in their ability to support a particular candidate for these statewide offices and to disassociate at the general election stage from candidates who are not reflective of the parties’ goals in judicial elections. See Doc. 14-1 at ¶¶ 10-12.

This burden is not hypothetical. In 2014, when a vacancy on the court of appeals was decided without a primary, 19 candidates were on the general election ballot. Doc. 14-1 at ¶ 16. After the 2014 general election, the State Board of Elections issued a report on voter wait times, Doc. 14-6 at ¶ 3, which among other things indicated significant problems with voter confusion in the court of appeals race; in counties with certain kinds of voting machines, this confusion and the long ballots were contributing factors to delays. Id. at 8 (noting that the spoilage of ballots resulting from voter confusion over the court of appeals race as contributing to the need to change paper rolls more often, thus removing a voting machine from availability, and, later, noting the long ballot contributed to voter wait times). The winner in that race received only 23% of the vote, just as had happened in 2004 when there were eight candidates for a supreme court seat. Doc. 14-1 at ¶ 16.

Now comes this news:
View image on Twitter<https://twitter.com/NCSBE/status/962021434930483200/photo/1>
[View image on Twitter]<https://twitter.com/NCSBE/status/962021434930483200/photo/1>

[https://pbs.twimg.com/profile_images/885613272552136705/9ZBAlh2q_bigger.jpg]NCSBE at NCSBE<https://twitter.com/NCSBE>

Just-issued Fourth Circuit order means no primary for any judicial races in 2018. For now, that means N.C. Supreme Court and Court of Appeals candidates will NOT file in February. #ncpol<https://twitter.com/hashtag/ncpol?src=hash>
9:52 AM - Feb 9, 2018<https://twitter.com/NCSBE/status/962021434930483200>
8<https://twitter.com/intent/like?tweet_id=962021434930483200>
39 people are talking about this<https://twitter.com/NCSBE/status/962021434930483200>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Voting Technology in Pennsylvania: Report of the Advisory Committee on Voting Technology”<http://electionlawblog.org/?p=97424>
Posted on February 9, 2018 7:48 am<http://electionlawblog.org/?p=97424> by Rick Hasen<http://electionlawblog.org/?author=3>

This looks worth the read<http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2017-12-11%20FOR%20WEBSITE%20%20VOTING%20FINAL%20REPORT%2011.30.17.pdf>.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Cutting-Edge Evidence and an Old-Fashioned Decision<http://electionlawblog.org/?p=97422>
Posted on February 8, 2018 10:16 pm<http://electionlawblog.org/?p=97422> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

I was very happy to see Jim Gardner’s guest post<http://electionlawblog.org/?p=97403> on the Pennsylvania Supreme Court’s decision striking down the state’s congressional plan. Jim has written several<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=895167> terrific<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=951952> articles<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001688> on the state constitutional law of partisan gerrymandering, so I can’t think of a better commentator.

I just wanted to add a few observations to Jim’s excellent analysis. First, there is a disconnect in the decision between the evidence the court summarizes and the legal standard it then articulates. The evidence presented at trial was largely about the Pennsylvania plan’s partisan skew: how enormous it is compared to other maps, both in the state and nationwide; how such a large tilt undermines congressional representation; how the plan will continue to benefit Republicans under almost any electoral environment; and how the plan is more biased than hundreds of computer-simulated maps. The court’s test, though, has almost nothing to do with any of this material. Instead, it focuses on compliance with traditional redistricting criteria such as contiguity, compactness, and respect for political subdivisions. These criteria barely appear in the descriptive portion of the decision, yet suddenly leap to the forefront in the court’s legal analysis.

Second, there is also a disconnect between the criteria and the constitutional principle the court is trying to vindicate: namely, not “diluting the potency of an individual’s vote for candidates for elective office relative to that of other voters.” The court recognizes that “partisan gerrymandering dilutes the votes” of a party’s supporters “by placing [them] in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing).” But the court then endorses redistricting requirements that have only a tenuous relationship with vote dilution. After all, it is perfectly possible for votes to be diluted by districts that are contiguous, compact, and respectful of town and county boundaries. Likewise, ugly districts may not dilute any group members’ votes despite their unattractive appearance.

Third, what seems to be driving the court is not actually opposition to partisan gerrymandering but rather an older theory of representation that was ascendant in American politics prior to the one person, one vote revolution of the 1960s. Under this theory, which both Jim and I<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1777276> have written about, the point of electoral districts is to represent coherent geographic communities as effectively as possible in the legislature. Or in the court’s words: “[T]he greatest emphasis [is] on creating representational districts that . . . maintain the geographical and social cohesion of the communities in which people live and conduct the majority of their day-to-day affairs.” “When an individual is grouped with other members of his or her community in a congressional district for purposes of voting, the commonality of the interests shared with the other voters in the community [is respected].” Note that, under this approach, what is wrong with gerrymandering is not the unbridled pursuit of partisan advantage. Rather, it is the disruption of people’s underlying communities: districts’ splintering of communities that could have been kept whole, and their fusion of communities that could have remained distinct.

And fourth, almost as an aside, the court acknowledges at the end of its decision that compliance with traditional redistricting criteria might not stop vote dilution or partisan gerrymandering. “[T]here exists the possibility that advances in map drawing technology and analytical software can potentially allow mapmakers, in the future, to engineer congressional districting maps, which, although minimally comporting with these neutral ‘floor’ criteria, nevertheless operate to unfairly dilute the power of a particular group’s vote for a congressional representative.” The court may think this eventuality lies in the future, but it is very much with us already. Both in the Whitford case from Wisconsin and the LWVNC case from North Carolina, the mapmakers produced extreme partisan gerrymanders that nevertheless scored reasonably well on conventional metrics. If the Pennsylvania legislature manages to enact a remedial plan, I would expect it to follow the same strategy: to design a map that looks much prettier, but that preserves Republicans’ 13-5 advantage. The governor would presumably veto such a plan, meaning that the court still would not need to “address at this juncture the possibility of such future claims.” But the court’s day of reckoning with modern, aesthetically acceptable gerrymanders is probably coming sooner than it thinks.
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