[EL] ELB News and Commentary 7/4/19

[Rick Hasen]

“U.S. District Court Enjoins New Arkansas Petition 3% Requirement for New Parties”<https://electionlawblog.org/?p=106057>
Posted on July 4, 2019 11:14 am<https://electionlawblog.org/?p=106057> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN<http://ballot-access.org/2019/07/03/u-s-district-court-enjoins-new-arkansas-petition-3-requirement-for-new-parties/>:

On July 3, U.S. District Court Judge Kristin G. Baker enjoined the new Arkansas petition requirement for newly-qualifying parties. Libertarian Party of Arkansas v Thurston, e.d., 4:19cv-214. Here is the 63-page order<https://www.courtlistener.com/recap/gov.uscourts.ared.116300/gov.uscourts.ared.116300.31.0.pdf>.

Earlier this year, the Arkansas legislature had increased the party petition from 10,000 signatures, to 3% of the last gubernatorial vote, which is currently 26,746 signatures. The order says, on page 49, “There is no record evidence before the Court that explains the State’s interest – let alone a compelling one – in requiring new political parties to meet the 3% requirement, file a petition more than a year in advance of the general election, and collect signatures in a 90-day window.” On page 51, the order says, “There is no record evidence of ballot overcrowding. In fact, Mr. Hood, the State of Arkansas’ own expert, conceded that a ballot with only a Democrat, a Republican, and a Libertarian would not be an overcrowded ballot.”
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Posted in ballot access<https://electionlawblog.org/?cat=46>


“Server image mystery in Georgia election security case”<https://electionlawblog.org/?p=106053>
Posted on July 4, 2019 11:04 am<https://electionlawblog.org/?p=106053> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.apnews.com/0117a85d02ff4890b5a66f1c9f3c376e>:

The case of whether hackers may have tampered with elections in Georgia has taken another strange turn.

Nearly two years ago, state lawyers in a closely watched election integrity lawsuit told the judge they intended to subpoena the FBI for the forensic image, or digital snapshot, the agency made of a crucial server before state election officials quietly wiped<https://www.apnews.com/877ee1015f1c43f1965f63538b035d3f> it clean. Election watchdogs want to examine the data to see if there might have been tampering, given that the server was left exposed by a gaping security hole for more than half a year.

A new email obtained by The Associated Press says state officials never did issue the subpoena, even though the judge had ordered that evidence be preserved, including from the FBI.

The FBI data is central to activists’ challenge to Georgia’s highly questioned, centrally administered elections system, which lacks an auditable paper trail and was run at the time by Gov. Brian Kemp, then Georgia’s secretary of state.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


Further Information On The Census Issue<https://electionlawblog.org/?p=106044>
Posted on July 4, 2019 10:00 am<https://electionlawblog.org/?p=106044> by Richard Pildes<https://electionlawblog.org/?author=7>

We are beginning to get little windows into the internal governmental process involved in the reversal-of-course on the Census issue. As expected, the DOJ lawyers concluded that the issue was over, because there was not enough time left to generate a valid alternative option. This is from the WSJ story<https://www.washingtonpost.com/politics/trump-appears-to-contradict-his-own-administration-on-census-citizenship-question/2019/07/03/b720bb94-9da4-11e9-b27f-ed2942f73d70_story.html?utm_term=.e7ff9f7d5024>:

Almost from the moment the Supreme Court ruled, Justice Department lawyers figured the administration would have no choice: The census would have to be printed without the citizenship question, people familiar with the matter said. That is because the deadline to print was just days away, and officials knew there would not be time to successfully push for some other outcome, according to the people, who, like others, spoke on the condition of anonymity to discuss the administration’s deliberations.

If this reporting is accurate, the Attorney General apparently agreed with this view:

A Trump adviser who regularly speaks to the president said Trump was frustrated after government lawyers determined there was no way to win the case and released statements yesterday saying the battle was over. The adviser said Attorney General William P. Barr had agreed and recently confirmed this to the president.

Meanwhile, the Census forms are already being printed. That’s what the government told the District Court yesterday:

 On July 2, 2019, counsel for Defendants sent an email communication to counsel for Plaintiffs confirming that the questionnaire for the 2020 Decennial Census had been sent to the

printer, without a question inquiring about respondents’ citizenship status, and that the process of printing the questionnaires had started. ECF No. 610-3. That representation was based on the information undersigned counsel had at the time, and it remains undersigned counsel’s

understanding that the process of printing the questionnaires, without the citizenship question,

continues. (emphasis added)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump considers executive order on citizenship question”<https://electionlawblog.org/?p=106045>
Posted on July 4, 2019 9:59 am<https://electionlawblog.org/?p=106045> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports<https://www.axios.com/trump-considers-executive-order-on-citizenship-question-5c9dfdb5-facd-46ed-b1fd-fdda7eb2aa15.html>.

I don’t see how doing this through an executive order helps at all. The issue is not whether the President (or Commerce Secretary) has the right to add a citizenship question, per the Supreme Court’s Department of Commerce <https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf> decision last week. The issue instead is whether there is a good enough reason for including the question that is not a pretext.

It seems stronger for that reason to come from the Commerce Secretary and the Census Bureau than declared in an executive order.

In any case, I wrote at Slate<https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html> that I believed Chief Justice Roberts left the door open to the government coming forward with a new reason, but I have to believe he is put off by this amateur hour maneuvering.
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Mike Parsons: Rucho’s Antidemocratic Instinct: “This is not law.” (Rucho Symposium)<https://electionlawblog.org/?p=105956>
Posted on July 4, 2019 7:00 am<https://electionlawblog.org/?p=105956> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Mike Parsons<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=49150>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

In holding that partisan gerrymandering claims are not “resolvable according to legal principles” and are “therefore beyond [federal] courts’ jurisdiction,” Chief Justice Roberts casts aspersions on the democratic “instinct” that greater political support should result in greater political power, closing with a quip: “[T]his is not law.”[1]<https://electionlawblog.org/#_ftn1>  That barb is ironic.  For Rucho seems more animated by instinct than law.  As in other areas of federal election law, the Court’s purported eschewal of democratic theory in Rucho reflects its own theory of democracy—and a damaging one at that.

First the good news: Voters can still bring partisan gerrymandering claims in state courts.  Not only do state constitutions contain unique protections for voting beyond those relied upon under federal law,[2]<https://electionlawblog.org/#_ftn2> litigants could use the evidentiary tools and standards developed by federal district courts to date to bring state equal-protection and/or free expression/association claims.[3]<https://electionlawblog.org/#_ftn3>  While state courts often instinctively adopt federal precedent,[4]<https://electionlawblog.org/#_ftn4> there are good reasons not to foreclose such claims here: (1) Rucho did not dismiss the Equal Protection or First Amendment claims on the merits;[5]<https://electionlawblog.org/#_ftn5> (2) Rucho invokes the history of the Elections Clause—a provision unique to the federal constitution—in support of its justiciability ruling; and (3) the justifications for lockstepping federal rights doctrines do not strongly support lockstepping federal structural doctrines.[6]<https://electionlawblog.org/#_ftn6>  All of these provide off-ramps for state court justices unwilling to close the courthouse doors on gerrymandering claims.

Now the bad news: Rucho’s core holding appears to rest on a far more dangerous idea—that governments can claim a legitimate interest in designing electoral rules to benefit a state-favored candidate or party.

To avoid this, one could attempt to read Rucho against the grain as a prudential decision.  While Rucho (like Vieth) invokes the history of the Elections Clause to inform its analysis, the holding is principally based on the supposed inherent unmanageability of the claim.  No majority has ever held a whole category of constitutional claims nonjusticiable on this basis alone,[7]<https://electionlawblog.org/#_ftn7> and for good reason: doing so sets the political question doctrine in conflict with standing doctrine.[8]<https://electionlawblog.org/#_ftn8>  Rucho speculates about facts and arguments not before the Court in a discrete case or controversy, and it makes judgments about what is or is not conceptually possible as an abstract, extra-constitutional matter.  More to the point: it is disingenuous to claim that the Court is truly incapable of adopting a standard.[9]<https://electionlawblog.org/#_ftn9>  Perhaps, then, one might try to chalk Rucho up to a resurging prudential political-question doctrine: the Chief thought gerrymandering cases threatened the Court’s reputation, so he dressed up a practical decision in constitutional terms.  Whether that is a short-sighted or long-sighted decision, however, it would not be a decision “resolved according to legal principles.”

But what if we take the Chief at his word?  The Court has been jettisoning prudential justiciability rules in recent decades, and Rucho certainly purports to be constitutionally required.  What reading of which clause gives the decision legal force?  If Rucho did not interpret the First Amendment or Equal Protection Clause on the merits, then the opinion’s (incorrect) objection that partisan gerrymandering claims “invariably sound in a desire for proportional representation” is beside the point.  The more fundamental objection is that “deciding among . . . different versions of fairness . . . poses basic questions that are political, not legal,”[10]<https://electionlawblog.org/#_ftn10> and that the Elections Clause entrusts those decisions to the discretion of the legislature.  As Roberts notes, “fairness” could mean competitiveness, or proportionality, or keeping communities of interest together.[11]<https://electionlawblog.org/#_ftn11>  So far, so good: all of these are facially-neutral, legitimate theories of democratic governance that are contestable, and Roberts is right to leave legislators free to choose among them.[12]<https://electionlawblog.org/#_ftn12>

To render gerrymandering claims nonjusticiable as a constitutional matter, however, Roberts goes a step further—throwing neutrality overboard and holding that a government preference for a specific party/candidate is just another legitimate theory of representation that legislatures may pursue under the Elections Clause.[13]<https://electionlawblog.org/#_ftn13>  This is a dramatic and dangerous development[14]<https://electionlawblog.org/#_ftn14> that elides the difference between courts illegitimately displacing legislative discretion and courts legitimately applying judicial standards to legislative decisions.[15]<https://electionlawblog.org/#_ftn15>

The consequences are likely to be severe.  After the 2020 Census, gerrymanders won’t just pinpoint partisans more precisely—they might combine qualitative dilution with quantitative dilution, doubly suppressing the influence of disfavored voters.  If “securing partisan advantage” is a permissible state interest, then we might even see legislators exploring beyond the one-person one-vote doctrine’s 10% threshold of presumptive unconstitutionality.[16]<https://electionlawblog.org/#_ftn16>  Such aggressive compound-gerrymanders would make “state-favored candidates” virtually undefeatable.

Moreover, if “securing partisan advantage” is a legitimate state interest, legislators may feel compelled to test whether Rucho’s implicit interpretation of the Elections Clause can be smuggled outside the redistricting context.  Unlike a decision holding partisan-gerrymanders unlawful (which disarms both parties), Rucho creates a perverse incentive for legislators to reap the “first-mover” advantage that might come from applying the decision’s logic in new contexts.  After 2010, Republicans bet big that ambiguities in redistricting law would be resolved in their favor and they were rewarded.  Whether 2020 rewards the same behavior—or whether Anderson-Burdick can provide a meaningful backstop—remains to be seen.  Either way, a wave of new laws aimed at rigging democratic institutions would seem to be on the horizon.

In short, Rucho is built on a cynical theory of constitutional democracy, where the sovereignty of “the people” increasingly slips behind the power of the state.  Perhaps the Chief Justice is hoping that voters’ partisan rancor and ever-growing disillusionment will be aimed at Congress or state legislatures instead of the Court.  But it’s a sorry kind of institutionalism that aims only to be the last branch of government to burn—especially if that requires laying the kindling.

In the one-person one-vote context, the Supreme Court once recognized that legislatures can advance any number of legitimate state redistricting policies so long as those policies “are free from any taint of arbitrariness or discrimination.”[17]<https://electionlawblog.org/#_ftn17>  Under Rucho, discrimination is a legitimate policy—and the state’s avowed goal of picking winners is granted the same deference as a choice between competitiveness, proportionality, symmetry, or keeping communities intact.  State supreme courts should reject the invitation to incorporate this antidemocratic instinct into their own charters.  And hopefully, in time, the Supreme Court will look back upon Rucho and say, “This is not law.”

________________________________

[1]<https://electionlawblog.org/#_ftnref1> Rucho v. Common Cause, Slip Op. 7, 16, 34<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> (2019).

[2]<https://electionlawblog.org/#_ftnref2> See, e.g., Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014).

[3]<https://electionlawblog.org/#_ftnref3> See G. Michael Parsons, Partisan Gerrymandering Under Federal and State Law<https://ssrn.com/abstract=3412100>, in America Votes! Challenges to Modern Election Law & Voting Rights (Jack Young & Ben Griffith eds., ABA, 4th ed.) (forthcoming 2019).  At the very least, including these claims alongside state-specific claims could provide a useful contrast to favor a more robust interpretation of the latter.

[4]<https://electionlawblog.org/#_ftnref4> See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018); Robert A. Schapiro, Contingency and Universalism in State Separation of Powers Discourse, 4 Roger Williams U. L. Rev. 79 (1998).

[5]<https://electionlawblog.org/#_ftnref5> See Will Baude, Can Federal Partisan Gerrymandering Claims be Brought in State Court?<https://reason.com/2019/06/28/can-federal-partisan-gerrymandering-claims-be-brought-in-state-court/>, Volokh Conspiracy (June 28, 2019).

[6]<https://electionlawblog.org/#_ftnref6> See Parsons, supra note 3, at 10-11 (citing Schapiro, supra note 4).

[7]<https://electionlawblog.org/#_ftnref7> See Rucho Slip Op. 1, 14 (Kagan, J., dissenting); G. Michael Parsons, Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford<https://ssrn.com/abstract=3334370>, 95 Ind. L.J. (forthcoming 2020) (to be updated).

[8]<https://electionlawblog.org/#_ftnref8> See generally Parsons, supra note 7.

[9]<https://electionlawblog.org/#_ftnref9> See id. at 44-45.

[10]<https://electionlawblog.org/#_ftnref10> Rucho, Slip Op. 19.

[11]<https://electionlawblog.org/#_ftnref11> Id. at 17-19.

[12]<https://electionlawblog.org/#_ftnref12> See G. Michael Parsons, Clearing the Political Thicket:  Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107, 1138-44 (2016).

[13]<https://electionlawblog.org/#_ftnref13> See Rucho, Slip Op. 23 (stating that “securing partisan advantage” is “[a] permissible intent”).

[14]<https://electionlawblog.org/#_ftnref14> Roberts cites this as established precedent.  Id. at 12.  It is not.  Gaffney stated that a districting scheme “may be vulnerable if . . .political groups have . . . their voting strength invidiously minimized.”  412 U.S. 735, 754 (1973).  Hunt likewise involved a state interest in “partisan balance” in which a six/six Democrat/Republican delegation was sought, reflecting statewide voting strength.  See Parsons, supra note 12, at 1142.  Precedent cuts overwhelmingly against the idea that the state can disfavor individuals based on their political views.  See Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993 (2018); Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 Mich. L. Rev. 351 (2017); Parsons, supra, note 12.

[15]<https://electionlawblog.org/#_ftnref15> See Parsons, note 7, at 34 (citing John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017)).

[16]<https://electionlawblog.org/#_ftnref16> See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016) (“assuming, without deciding, that partisanship is an illegitimate redistricting factor” for purposes of a Larios-style one-person one-vote claim); Mahan v. Howell, 410 U.S. 315, 329 (1973) (upholding a “16-odd percent” population deviation because “[w]hile this percentage may well approach tolerable limits, [the State has not] sacrificed substantial equality to justifiable deviations”).

[17]<https://electionlawblog.org/#_ftnref17> Roman v. Sincock, 377 U.S. 695, 710 (1964).
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


Justin Levitt: The Soft Bigotry of Low Legislative Expectations (Rucho Symposium)<https://electionlawblog.org/?p=105968>
Posted on July 4, 2019 6:00 am<https://electionlawblog.org/?p=105968> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Justin Levitt,<https://www.lls.edu/faculty/facultylistl-r/levittjustin/> part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Last Thursday’s Rucho majority opinion brought many indignities.  The shadowboxing with strawmen<https://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/>, in the form of proportionality claims no litigant put forward.  The cursory declaration of the issue as beyond plausible judicial management, when five federal courts and 14 federal judges (3 in MD<http://redistricting.lls.edu/cases-MD.php#MD>, 3 in MI<http://redistricting.lls.edu/cases.php#MI>, 3 in NC<http://redistricting.lls.edu/cases-NC.php#NCcommoncause>, 3 in OH<http://redistricting.lls.edu/cases.php#OH>, 2 in WI<http://redistricting.lls.edu/cases-WI.php#WI>, not to mention 5 state judges in FL<http://redistricting.lls.edu/cases-FL.php#FL> and 5 state judges in PA<http://redistricting.lls.edu/cases-PA.php#PA>) had somehow managed to manage it just fine.  The (continuing<https://supreme.justia.com/cases/federal/us/570/12-96/#tab-opinion-1970752>) privileging of the 1787 Constitution at the (continuing) expense of the reallocation of rights and duties wrought by the Reconstruction Amendments, and the related sideswipe at race-consciousness.  The faux-naïve paean to normal legislative politics as the route out of a problem created by newly emboldened partisan entrenchment in the legislature itself.

Ultimately, though, what you heard most after Rucho was the groan of lost opportunity.  The clearest cases of partisan excess found their way to the Court at the same time, wrapped with a bipartisan bow and an abundance of jurisprudential options.  The whole thing was gift-wrapped.  The Court picked up the gift, and threw it in the trash.

In terms of immediate practical impact on the law, the Court’s decision didn’t actually change all that much from the familiar landscape of decades.  We’re essentially back where we were in 2015, before Whitford v. Gill<http://redistricting.lls.edu/cases-WI.php#WI>triggered a short-lived consensus.  Federal courts (lookin’ at you, Illinois<http://redistricting.lls.edu/cases.php#IL>) were largely unsympathetic.  Some state courts were curious<http://redistricting.lls.edu/cases-PA.php#PA>; some were not<http://redistricting.lls.edu/cases.php#WV>.  Ballot initiatives could (and did) catch fire where the mechanism was lawful<http://www.iandrinstitute.org/states.cfm>.  All of these fights will continue, with vigor.  But where state courts are hostile and citizens’ initiatives unavailable, Here be There Gerry-Manders.

However, the fact that the legal landscape isn’t all that novel should not be confused with an assessment that nothing has changed.  Partisan politics continues to polarize<https://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/>, and even after substantial Democratic wins of 2018 pushed back on the Republican victories two years earlier, an alarming number of states<http://redistricting.lls.edu/who-partyfed20.php> seem to have cemented unilateral partisan control of the process.  Rather than calling on the better angels of our nature, the Supreme Court’s opinion gives cover to partisans of both major stripes to indulge their worst instincts.  Buckley really created the legal conditions for SuperPAC aggregates of ultrawealthy individuals, but it took the social permission of Citizens Unitedto supersize them.  Rucho may have a similar effect.

This permission comes from a concerted lack of precision embedded in the Court’s determination to duck.  First, the Court conflated political choices with partisan ones<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239491>.  Political choices are unavoidable in redistricting, just as political choices are unavoidable in taxation: in a world of contested values, the decision to connect two sides of a river or to stop at the water’s edge is inherently political.  This does not mean that the same choice is unavoidably or inherently driven by the pursuit of partisan advantage.  It may have partisan consequences, but it needn’t have a partisan motive.  That distinction passed the Court by.

The Court also conflated partisan choices with those that are provably partisan.  Call me starry-eyed and naïve, and tell me that every legislator is a partisan snake, and still I say it’s a different matter to prove that proposition<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062>.  Given myriad districting choices, only a small set of particular extremes can be provably identified as nakedly partisan.  That feature might have neatly allowed the Court to cut off the worst of the worst.  Instead, the Court conflated political with partisan, and partisan with provably partisan, threw up its hands at the purportedly inevitable and called the whole thing an unresolvable morass.

And then went further still.  The Court didn’t just say that it couldn’t tell legit plans from those infected with tribal partisanship.  It said that a low-grade infection was fine.  A healthy dollop of intentional gerrymandering for partisan advantage appears to be affirmatively constitutional.

To be sure, that notion had previously shown up in dicta in race cases (as an odd form of legal defense), or in individual plurality opinions.  But here, it has majority backing, for what I believe is the first time.

This is not a small matter.  This Court believes that a government may constitutionally set out to use state power to disadvantage citizens based on the political party they support.  “As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech,” Justice Roberts reminded us not five weeks ago<https://casetext.com/case/nieves-v-bartlett-1>.  Just not when it comes to setting electoral ground rules.

It used to be that redistricters at least had to pretend to be serving the general public over their partisan ambitions.  That put at least a modest limit on entrenchment.  Under federal law, no longer.  Moreover, permission to openly use government power to punish the opposition — even if only a “little bit” — is a difficult principle to cabin, in scope as much as degree.  Add this to the list of norms we’re likely to miss when it’s gone.
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“Democrats Can’t Be Afraid to Gerrymander Now”<https://electionlawblog.org/?p=106042>
Posted on July 3, 2019 5:14 pm<https://electionlawblog.org/?p=106042> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

My latest for Slate<https://slate.com/news-and-politics/2019/07/democrats-gerrymandering-scotus-rucho.html> (though not the title I would have chosen). I first describe the new gerrymandering techniques we may see after Rucho:

Let’s start with the schemes we’re likely to see now that the federal courts have been relegated to the sidelines. One of them is exploiting the redistricting algorithms that social scientists have recently developed<https://sites.tufts.edu/vrdi/files/2018/06/Chen-Rodden-unintentional.pdf>. These algorithms churn out huge numbers of maps based on whichever criteria the user specifies. These criteria can be nonpartisan, prioritizing compactness, respect for town and county boundaries, and so on. But they can also be partisan, producing the largest and most durable possible advantage for the line-drawing party. The algorithms thus make possible a new breed of gerrymander—one that looks reasonable to the naked eye, but in fact is optimized to maximally benefit one side over the other.

Another strategy will be to imitate the re-redistricting of the 19th-century mapmakers. Say that, in the last election, a party won one district by a tighter margin than it expected, and came close to victory in another district but ultimately fell short. Historically, this party would try to do better next time: to raise more money, recruit stronger candidates, and hope for a more favorable electoral environment. After Rucho, however, the party can skip all that and just redraw the lines. It can bolster its position in the district that was slipping away, and add enough of its voters to flip the district that was trending in its direction. And the party can repeat these steps as often as it likes—even every two years, if necessary to keep its edge in the face of a changing electorate.

A final ploy will be to start creating noncontiguous districts: districts made up of separate, unconnected groups of voters. The contiguity norm that has held until now hurts any party whose voters are distributed inefficiently: for example, by living mostly in urban centers. But in the post-Rucho world, no party has to put up with a geographic disadvantage. It can simply take clusters of its voters in one part of a state (like a city) and pair them with smaller pockets of the other side’s voters in some other region (like the exurbs). If these populations are far from one another and different in their needs and interests—well, that’s a shame, but it’s not illegal.

I then think through how progressives (or, alternatively, those who oppose gerrymandering and want fairer maps) should operate in the post-Rucho world:

The best idea, though, is for blue states to design their congressional plans using a criterion of countrywide fairness. If the whole U.S. House was biased in a Republican direction, the states would thus manipulate district lines in favor of Democrats. But if the House was balanced or tilted toward Democrats, the states would pass neutral or even pro-Republican maps. This approach would prevent Democrats from being played for suckers in the post-Rucho world. But it would also allow progressives to stay true to their principles: to gerrymander only to make elections fairer overall, and to stop gerrymandering as soon as the national playing field is level.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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