[EL] symmetry got no shrift at all in Justice Kagan's dissent in Rucho

[Chin, Andrew]

Long time listener, first time caller, although I wrote amicus briefs in Gill and Rucho and have written various pieces with the Duke math experts. Here’s an op-ed I wrote Thursday but haven’t had any luck in placing. My take is that the statistical evidence in Rucho was an appeal to normalcy, not symmetry. Feedback welcome, as I’ll likely repurpose it.

Andrew Chin
Paul B. Eaton Distinguished Professor
University of North Carolina School of Law

Thursday’s 5-4<outlook-data-detector://7> Supreme Court decision in Rucho v. Common Cause delivered a body blow to the nation’s constitutional commitment to democracy in the form of a strawman argument.
Chief Justice John Roberts framed his analysis with the sweeping statement that “[p]artisan gerrymandering claims invariably sound in a desire for proportional representation.” This was an odd observation, as the plaintiffs challenging North Carolina’s congressional districts in Rucho never expressed any desire or claim for proportional representation.
Perhaps old habits die hard. In 1986, 2004, and 2006, the Court had rejected previous tests for excessive partisanship that did appeal to an ideal of proportional representation. These tests for partisan bias were inherently flawed because of the various alternative causes that could explain disproportionate electoral outcomes, such as the winner-take-all rule, fluctuations in party-line voting, and the different residential patterns of Republicans and Democrats.
The North Carolina plaintiffs avoided all of these complicating factors by taking an approach suggested by the Seventh Circuit’s conservative Chief Judge Frank Easterbrook in a 2008 case. “Redistricting software cannot answer all hard questions,” Easterbrook wrote, “but it provides a means to implement a pure effects test without demanding proportional representation.”
Easterbrook suggested that the plaintiffs challenging Aurora’s city council map as a racial gerrymander could have submitted thousands of random computer-simulated redistrictings to show that the challenged map provided an atypically small number of districts where Latino voters held influence. From this evidence, Easterbrook said, “a court might sensibly conclude that Aurora had diluted the Latino vote by undermining the normal effects of the choices that Aurora’s citizens had made about where to live.”
Roberts’s decision in Rucho leaves North Carolina with a congressional map that is not merely abnormal, but truly exceptional. As Justice Elena Kagan highlighted in her dissent, all of 3,000 maps submitted by one expert and 99% of 24,518 maps submitted by another would have led to the election of more Democrats. And as I outlined in my amicus brief to the Court, at least ten of the thirteen voter-plaintiffs were districted in ways that left them with less influence on the electoral outcome than in 95% or more of the simulated maps.
Rucho was a call for a return to normalcy in the electoral “effects of the choices that [North Carolina’s] citizens had made about where to live,” not for proportionate or “fair” representation. Extensive, uncontradicted and unambiguous evidence established the causal link between the defendants’ intentionally partisan objectives and the plaintiffs’ discriminatory vote dilution injuries.
Thursday’s decision falsely framed the case as an ill-advised judicial inquiry into the politics of proportionality and fairness, finding political questions and ambiguities where none existed. Worse, the Court has extended this framing to all future partisan gerrymandering claims, at a time when advances in computer technology and the mathematical sciences are profoundly reshaping the legal and factual arguments.
The Rucho decision has proclaimed the Court’s indifference to the future of the American experiment in representative democracy and left our nation’s broken politics to fix itself.

Sent from my iPad
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