[EL] Toobin and House Results -- Re: ELB News and Commentary 11/18/18

Sun Nov 18 18:56:15 PST 2018

These discrepancies seem pretty minor, unless one wants to simply argue for some type of national PR. But then the problem is single-member districts, not gerrymandering.

For example, in 2008, Democrats got about 3.6 points more seats than vote share. In 1998, Republicans got just under 51% of the vote, and just over 51% of the seats. In 1988, Democrats got 54% of the two party vote and 60% of the seats. In 1978, Democrats got 54.5% of the popular vote and 63.7% of the seats.

People who know this history and see these numbers conclude that all the fuss about gerrymandering in this decade is just partisanship masquerading as constitutional law. I meet a great many people who honestly believe that gerrymandering began after 2010, and/or believe that gerrymandering is literally, by definition, something only Republicans do or can do. Some people have even been complaining that the Republicans gained senate seats this year because of gerrymandering.

I mean, if we want to get serious, this is all much more complex than just aggregating numbers. For example, just taking into account seats in which one of the major parties did not field a candidate, if we assume each party had nominated a placeholder, non-campaigning candidate for every seat it would probably have shaved around 2 million or more off the Democrats national 8 million vote margin. And of course numerous other factors come into play.

So yeah, let's not look at the numbers in isolation. Let's look at all kinds of factors, such as the historical asymmetry in which pro-Democratic party gerrymandering did not trigger some constitutional crisis, the American constitutional and legal system, the geographic distribution of voters, and a whole lot more.

Let's really put it in context.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of David Segal [davidadamsegal at gmail.com]
Sent: Sunday, November 18, 2018 8:56 PM
To: mark.scarberry at pepperdine.edu
Cc: law-election at uci.edu
Subject: Re: [EL] Toobin and House Results -- Re: ELB News and Commentary 11/18/18

It'd be what you'd want taken in isolation (and I support systems that are more likely to yield proportionality than the current one) but Toobin should have contextualized the stat in the asymmetry relative to what happens under the current districts for Republicans.

Repubs won 50.4% of the two parties' popular vote in 2016 but took 55.4% of seats.

52.9% vs 56.8% in 2014

49.3% vs 53.7% in 2012

And also could have been spoken to in the context of the longer historical norm that Nicholas mentions. (Which isn't necessarily a positive feature of our system, and could be corrected for through PR.)

On Sun, Nov 18, 2018 at 8:22 PM Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
Jeffrey Toobin, in the New Yorker article, writes:

"Even the good news from the election comes with a caveat, however. According to an analysis by the Brennan Center for Justice, Democrats won the over-all popular vote in the four hundred and thirty-five races for the House of Representatives by about nine per cent, but they managed to capture only a relatively narrow majority of seats. This is because the district lines are so egregiously gerrymandered, especially in states fully controlled by Republicans."

Assuming my math is correct:

A 9% margin would put the percentages at 54.5 to 45.5 (leaving aside third parties). Out of 435 seats, 54.5% would be 237, and 45.5% would be 198. It appears that, with a few races still to be decided, Democrats will have at least 232 seats and Republicans will have at least 198. If the five other raises split evenly, the division will be 234 or 235 Democrats, and 200 or 201 Republicans. Is this particularly disproportionate?

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Sun, Nov 18, 2018 at 4:09 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

...

Jeffrey Toobin Expresses Some Optimism About Voting Rights<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d102371&c=E,1,7OK5WT5ElDpG1pm3dyZZ77_XlTgbpwA-x61Yi-TBDiNOZQ1mXolFU9j9U4MNUrVXziYHHzkAgeojG1EEMr6yV75KKTSskicYfsSRiF1pYlY,&typo=1>
Posted on November 18, 2018 3:17 pm<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d102371&c=E,1,0imx0KKLdnx1k05D44rf9-2g2pc7ISCcmo4BLHpKd1h6GRtKv8g8v1BiXsFahol8J5Z4PGZ_0rvkcKs2YQHHMBa5W01LsmgfZs7gQjdwc3iXWXx_sKhn8A,,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,STpH0P5cIhFCjkvN-RoDDJi-S2ovY3wkN-_06G3kPlhYngRZ8_E0Agb_BHP1Gf3R5LKLJ033emKjt6Pu0XHqDd1kUMhZ4YkV3m6oGF7Ywmbp6A,,&typo=1>

Not so sure I agree with this one<https://www.newyorker.com/magazine/2018/11/26/how-voting-rights-fared-in-the-midterms>.
<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102371&title=Jeffrey%20Toobin%20Expresses%20Some%20Optimism%20About%20Voting%20Rights>
Posted in The Voting Wars<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d60&c=E,1,24wtlcz7Gb3X8MBoNq94qviXJFtydDhkgPjb5tNKCDUu9Cs8vOuM3At8vxRCxWEz3YIqq6_9gRVx93pceChyOQkAVkNqt6qMGeVfD4dU6cCID4Kditi7&typo=1>

...
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