[EL] MMDs with PR
Steven John Mulroy (smulroy)
smulroy at memphis.edu
Fri Jul 5 22:07:50 PDT 2019
Rick Pildes says that PR with Ranked Choice Voting is in tension with RCVs majoritarian goal. He's right that single winner RCV, such as that is used to fill a single member district, is majoritarian. But if you're filling 3-5 members in a multimember district, RCV isn't designed to yield majority winners--just winners who get 1/4 to 1/6 of the votetrs (respectively). It's designed to get proportional votes-seats results, and does pretty well.
Rick certainly has a valid point re constituent -incumbent contact and constituent service in larger districts. But note that while the MMDs would be 3-5 times as big, there'd be 3-5 tines as many district field offices and case work staffers. Especially in the age of phones and the Web , constituent-incumbent interaction issues seem surmountable.
Sent from my iPhone. Please excuse typos.
>
>
>
> ------------------------------
>
>
>>
>>
>> -----Original Message-----
>> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu]
>> On Behalf Of Steven John Mulroy (smulroy)
>> Sent: Thursday, July 4, 2019 3:50 PM
>> To: law-election at department-lists.uci.edu
>> Subject: Re: [EL] Rick Pildes Guest Post
>>
>> Rick Pildes does a good job explaining the practical tensions between
>> partisan fairness and competitiveness, and between both and traditional
>> districting criteria like compactness, contiguity, respect for political
>> subdivision boundaries, and "communities of interest" (whatever that
>> means). In my recent book Rethinking US Election Law, I argue that these
>> tensions are inherent and irreconcilable, and reveal a fundamental flaw in
>> our single member district, winner take all system. Thus, we should not
>> assume that the ultimate I hope I iremedy is in independent Redistricting
>> commissions (or IRCs, as Pildes calls them)
>>
>> . Rather, we should consider proportional representation approaches using
>> multi member districts and ranked choice voting. They have many advantages
>> beyond fixing the persistence of "natural gerrymanders" even with well
>> intentioned IRC map-drawers. There should be a new piece about this soon
>> in The New Republic.
>>
>> I hope reformers disappointed by Rucho don't rush to judgment towards IRCs
>> as a perceived best practice.
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>>
>> https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwICAg&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=74qvnkiCgjdaR3YsyEaF8IibxcyuuaWGEuHZSh5gerI&s=GawCFj2BxSqBslCJ8BAAbmG-V2p--ZdY6lRBjdOyuZQ&e=
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> President and CEO, FairVote
> 6930 Carroll Avenue, Suite 240
> Takoma Park, MD 20912
> rr at fairvote.org (301) 270-4616 http://www.fairvote.org
> *FairVote Facebook <https://www.facebook.com/FairVoteReform>* *FairVote
> Twitter <https://twitter.com/fairvote>* My Twitter
> <https://twitter.com/rob_richie>
>
> Thank you for considering a *donation
> <http://www.fairvote.org/donate>. Enjoy our video on ranked choice voting
> <https://youtu.be/CIz_nzP-W_c>!*
> (Note: Our Combined Federal Campaign number is 10132.)
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> Message: 5
> Date: Thu, 4 Jul 2019 15:55:40 -0700
> From: Dan Meek <dan at meek.net>
> To: law-election at department-lists.uci.edu
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID: <0210fcf9-273f-9978-9959-f5bb22407464 at meek.net>
> Content-Type: text/plain; charset="windows-1252"; Format="flowed"
>
> Rick Pildes suggests " the hybrid German system, in which voter elect
> individual representatives from districts but there is also a
> party-based vote, and the overall representation reflects the correct PR
> outcome."
>
> In Oregon very soon the largest group of voters will be the
> non-affiliateds, who already comprise 33% of all registered voters. How
> does the German system work when lots of voters join and support no party?
>
> Dan Meek
>
> 503-293-9021 dan at meek.net <mailto:dan at meek.net> 855-280-0488 fax
>
>
>> On 7/4/2019 2:17 PM, Rob Richie wrote:
>> I'm pleased that this exchange is happening on Independence Day, with
>> its special connection to our nation's founding principles -- the
>> meaning of being created equal, how best to ensure government is
>> grounded in the consent of the governed, and what it might mean today
>> for the people to act "to institute new government, laying its
>> foundation on such principles and organizing its powers in such form,
>> as to them shall seem most likely to effect their safety and happiness."
>>
>> i think Rick Pildes is right to be cautious about proposals like the
>> Fair Representation Act for Congress, and he asks good question about
>> how the single transferable vote (ranked choice voting in multi-winner
>> districts) might work in elections to the US House.
>>
>> At the same time, we have a lot of data to help assess his questions
>> and similar ones, and I'm looking forward to upcoming work being
>> organized to evaluate such questions. In 2015, FairVote oversaw an
>> important comparative analysis
>> <https://www.fairvote.org/comparative-structural-reform>involving a
>> lot of scholars active on this list or frequently cited that suggested
>> a system like the Fair Representation Act would be the most positively
>> consequential change we might do - and certainly more feasible than a
>> mixed member system in a nation where half of states have five or
>> fewer House seats.
>>
>> What I've seen suggests strongly it won't cost more to run and win
>> seats within such a system, that racial minority voting rights would
>> be expanded and better protected, that fair political outcomes the
>> norm.and that every voter in every election would participate in a
>> meaningfully contest where their vote mattered. Living in a Maryland
>> community where I am directly represented by five county
>> commissioners, four state legislators and two U.S Senators (as with
>> all state residents without great complaint), I am comfortable with
>> not being limited to one representative per legislative body. Having
>> more than one representative is quite common in the United States,
>> with 41 states having at least some multi-member state legislative
>> districts as recently as the 1950s.
>>
>> Speaking to Steve's original post and some email traffic earlier on
>> Rucho that legal scholars perhaps could do more to lay a legal theory
>> driving their challenge, I think there's a real case to be made that
>> "consent of the governed" clashes with winner-take-all elections in
>> the modern era of politics. For all its virtues (which are real),
>> independent redistricting will only marginally increase electoral
>> competition and can result in exceptionally imbalanced representation.
>> Witness California, which has an independent redistricting commission
>> and a congressional delegation in which Republicans hold seven seats
>> (13%) out of 53 today despite their nominees for president and
>> governor averaging 35 percent of the vote in 2016 and 2018, Out of 53
>> California seats, 34 seats were won by landslides of 20% or more, and
>> only five won by less than five percent.
>>
>> Consider what Justice Kagan says in her Rucho dissent in this
>> revealing passage, - one that underscores that fairness is not a goal:
>>
>> << Everything in today?s opinion assumes that these cases grew out of
>> a ?desire for proportional representation? or, more generally phrased,
>> a ?fair share of political power.? Ante, at 16, 21. And everything in
>> it assumes that the courts below had to (and did) decide what that
>> fair share would be. But that is not so. The plaintiffs objected to
>> one specific practice?the extreme manipulation of district lines for
>> partisan gain. Elimination of that practice could have led to
>> proportional representation. Or it could have led to nothing close.
>> *What was left after the practice?s removal could have been fair, or
>> could have been unfair, by any number of measures. That was not the
>> crux of this suit.>> /[emphasis added]/*
>> *
>> *
>> Without anything close to criticism of the plaintiffs and their
>> attorneys in this for case,I , for one, would like to see legal
>> theories developed that would lead to fairness actually being the crux
>> of the case.
>>
>> Rob Richie
>>
>> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu
>> <mailto:rick.pildes at nyu.edu>> wrote:
>>
>> I support ranked-choice voting in certain kinds of elections,
>> particularly for a single officeholder (Ned Foley's idea that
>> States should use it in presidential elections is a good one).
>>
>> I have been more skeptical about using MMDs and RCV when electing
>> members of Congress. Take a State like NC, which might be carved
>> up into three regions for MMDs; the regions would elect 4, 4, and
>> 5 candidates. So we would have 8-10 candidates running in a
>> general election, across a third of the State, with voters having
>> to rank them. My concerns are that this would raise the cost of
>> elections; demand more of voters regarding information than is
>> reasonable to expect; would leave voters without feeling they had
>> a representative who was "their" person. I think a better
>> approach, if we are going to think outside the box this far, is
>> the hybrid German system, in which voter elect individual
>> representatives from districts but there is also a party-based
>> vote, and the overall representation reflects the correct PR outcome.
>>
>> But none of these changes are going to happen, certainly not for
>> the 2020 round. So for that, I still will focus on IRCs.
>>
>> Best,
>> Rick
>>
>> Richard H. Pildes
>> Sudler Family Professor of Constitutional Law
>> NYU School of Law
>> 40 Washington Sq. So.
>> NYC, NY 10012
>> 212 998-6377
>>
>> -----Original Message-----
>> From: Law-election
>> [mailto:law-election-bounces at department-lists.uci.edu
>> <mailto:law-election-bounces at department-lists.uci.edu>] On Behalf
>> Of Steven John Mulroy (smulroy)
>> Sent: Thursday, July 4, 2019 3:50 PM
>> To: law-election at department-lists.uci.edu
>> <mailto:law-election at department-lists.uci.edu>
>> Subject: Re: [EL] Rick Pildes Guest Post
>>
>> Rick Pildes does a good job explaining the practical tensions
>> between partisan fairness and competitiveness, and between both
>> and traditional districting criteria like compactness, contiguity,
>> respect for political subdivision boundaries, and "communities of
>> interest" (whatever that means). In my recent book Rethinking US
>> Election Law, I argue that these tensions are inherent and
>> irreconcilable, and reveal a fundamental flaw in our single member
>> district, winner take all system. Thus, we should not assume that
>> the ultimate I hope I iremedy is in independent Redistricting
>> commissions (or IRCs, as Pildes calls them)
>>
>> . Rather, we should consider proportional representation
>> approaches using multi member districts and ranked choice voting.
>> They have many advantages beyond fixing the persistence of
>> "natural gerrymanders" even with well intentioned IRC
>> map-drawers. There should be a new piece about this soon in The
>> New Republic.
>>
>> I hope reformers disappointed by Rucho don't rush to judgment
>> towards IRCs as a perceived best practice.
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> <mailto:Law-election at department-lists.uci.edu>
>> https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwICAg&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=74qvnkiCgjdaR3YsyEaF8IibxcyuuaWGEuHZSh5gerI&s=GawCFj2BxSqBslCJ8BAAbmG-V2p--ZdY6lRBjdOyuZQ&e=
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> <mailto:Law-election at department-lists.uci.edu>
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> --
>> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>> Rob Richie
>> President and CEO, FairVote
>> 6930 Carroll Avenue, Suite 240
>> Takoma Park, MD 20912
>> rr at fairvote.org <mailto:rr at fairvote.org> (301) 270-4616
>> http://www.fairvote.org
>> _FairVote Facebook <https://www.facebook.com/FairVoteReform>__FairVote
>> Twitter <https://twitter.com/fairvote>_My Twitter
>> <https://twitter.com/rob_richie>
>>
>> Thank you for considering a /donation
>> <http://www.fairvote.org/donate>. Enjoy our video on ranked choice
>> voting <https://youtu.be/CIz_nzP-W_c>!/
>> (Note: Our Combined Federal Campaign number is 10132.)
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
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> ------------------------------
>
> Message: 6
> Date: Thu, 4 Jul 2019 23:21:03 +0000
> From: "Pildes, Rick" <rick.pildes at nyu.edu>
> To: Dan Meek <dan at meek.net>, "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID:
> <09C6C9D5F3987B4DAB90809228F227FAEA700989 at XCHMB01.ad.law.nyu.edu>
> Content-Type: text/plain; charset="us-ascii"
>
> What do those Oregon voters do when the general-election ballot does not list a candidate or party called "unaffiliated?"
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Dan Meek
> Sent: Thursday, July 4, 2019 6:56 PM
> To: law-election at department-lists.uci.edu
> Subject: Re: [EL] Rick Pildes Guest Post
>
> Rick Pildes suggests " the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome."
>
> In Oregon very soon the largest group of voters will be the non-affiliateds, who already comprise 33% of all registered voters. How does the German system work when lots of voters join and support no party?
>
> Dan Meek
>
> 503-293-9021
>
> dan at meek.net<mailto:dan at meek.net>
>
> 855-280-0488 fax
>
>
> On 7/4/2019 2:17 PM, Rob Richie wrote:
>
> I'm pleased that this exchange is happening on Independence Day, with its special connection to our nation's founding principles -- the meaning of being created equal, how best to ensure government is grounded in the consent of the governed, and what it might mean today for the people to act "to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
>
> i think Rick Pildes is right to be cautious about proposals like the Fair Representation Act for Congress, and he asks good question about how the single transferable vote (ranked choice voting in multi-winner districts) might work in elections to the US House.
>
> At the same time, we have a lot of data to help assess his questions and similar ones, and I'm looking forward to upcoming work being organized to evaluate such questions. In 2015, FairVote oversaw an important comparative analysis <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.fairvote.org_comparative-2Dstructural-2Dreform&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=4l1YKvAlA2rmsKfABiF_aUZA-5bUqPA3lwSXJxAGEr4&e=> involving a lot of scholars active on this list or frequently cited that suggested a system like the Fair Representation Act would be the most positively consequential change we might do - and certainly more feasible than a mixed member system in a nation where half of states have five or fewer House seats.
>
> What I've seen suggests strongly it won't cost more to run and win seats within such a system, that racial minority voting rights would be expanded and better protected, that fair political outcomes the norm.and that every voter in every election would participate in a meaningfully contest where their vote mattered. Living in a Maryland community where I am directly represented by five county commissioners, four state legislators and two U.S Senators (as with all state residents without great complaint), I am comfortable with not being limited to one representative per legislative body. Having more than one representative is quite common in the United States, with 41 states having at least some multi-member state legislative districts as recently as the 1950s.
>
> Speaking to Steve's original post and some email traffic earlier on Rucho that legal scholars perhaps could do more to lay a legal theory driving their challenge, I think there's a real case to be made that "consent of the governed" clashes with winner-take-all elections in the modern era of politics. For all its virtues (which are real), independent redistricting will only marginally increase electoral competition and can result in exceptionally imbalanced representation. Witness California, which has an independent redistricting commission and a congressional delegation in which Republicans hold seven seats (13%) out of 53 today despite their nominees for president and governor averaging 35 percent of the vote in 2016 and 2018, Out of 53 California seats, 34 seats were won by landslides of 20% or more, and only five won by less than five percent.
>
> Consider what Justice Kagan says in her Rucho dissent in this revealing passage, - one that underscores that fairness is not a goal:
>
> << Everything in today's opinion assumes that these cases grew out of a "desire for proportional representation" or, more generally phrased, a "fair share of political power." Ante, at 16, 21. And everything in it assumes that the courts below had to (and did) decide what that fair share would be. But that is not so. The plaintiffs objected to one specific practice-the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. What was left after the practice's removal could have been fair, or could have been unfair, by any number of measures. That was not the crux of this suit.>> [emphasis added]
>
> Without anything close to criticism of the plaintiffs and their attorneys in this for case,I , for one, would like to see legal theories developed that would lead to fairness actually being the crux of the case.
>
> Rob Richie
>
> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
> I support ranked-choice voting in certain kinds of elections, particularly for a single officeholder (Ned Foley's idea that States should use it in presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members of Congress. Take a State like NC, which might be carved up into three regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we would have 8-10 candidates running in a general election, across a third of the State, with voters having to rank them. My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person. I think a better approach, if we are going to think outside the box this far, is the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020 round. So for that, I still will focus on IRCs.
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> -----Original Message-----
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Steven John Mulroy (smulroy)
> Sent: Thursday, July 4, 2019 3:50 PM
> To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
>
> Rick Pildes does a good job explaining the practical tensions between partisan fairness and competitiveness, and between both and traditional districting criteria like compactness, contiguity, respect for political subdivision boundaries, and "communities of interest" (whatever that means). In my recent book Rethinking US Election Law, I argue that these tensions are inherent and irreconcilable, and reveal a fundamental flaw in our single member district, winner take all system. Thus, we should not assume that the ultimate I hope I iremedy is in independent Redistricting commissions (or IRCs, as Pildes calls them)
>
> . Rather, we should consider proportional representation approaches using multi member districts and ranked choice voting. They have many advantages beyond fixing the persistence of "natural gerrymanders" even with well intentioned IRC map-drawers. There should be a new piece about this soon in The New Republic.
>
> I hope reformers disappointed by Rucho don't rush to judgment towards IRCs as a perceived best practice.
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
> https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwICAg&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=74qvnkiCgjdaR3YsyEaF8IibxcyuuaWGEuHZSh5gerI&s=GawCFj2BxSqBslCJ8BAAbmG-V2p--ZdY6lRBjdOyuZQ&e=
> _______________________________________________
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> https://department-lists.uci.edu/mailman/listinfo/law-election<https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=-JL7fICXn02tkM9jbAjFd9D_NMCj85ZTTcl7fcdoWgw&e=>
>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> President and CEO, FairVote
> 6930 Carroll Avenue, Suite 240
> Takoma Park, MD 20912
> rr at fairvote.org<mailto:rr at fairvote.org> (301) 270-4616 http://www.fairvote.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fairvote.org&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=32s8WWniU5ftebn2QOrSVVS-qAKOPBDMg9qS3MoyVac&e=>
> FairVote Facebook<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.facebook.com_FairVoteReform&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=WY3ZGm1AxYmpRLdgii4Q9OC0goxq-v4N4Q6m68r2IgA&e=> FairVote Twitter<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_fairvote&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=Y6_OpaypmiB19atFE3_a7v2O8QxfQSF2J4q_y8ppGDA&e=> My Twitter<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_rob-5Frichie&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=0ukbeQIhOt8Q44tjygfV1Nfrjre7B_W9FMNAhcoWy6g&e=>
>
> Thank you for considering a donation<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fairvote.org_donate&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=1HuwKEIzCUW41yg3HECODH99NrtFdaf_Mh9cgMmifbA&e=>. Enjoy our video on ranked choice voting<https://urldefense.proofpoint.com/v2/url?u=https-3A__youtu.be_CIz-5FnzP-2DW-5Fc&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_dsUEwKncy00CdAqCYQbff60sAOtBkzOL_sslmS4zew&s=PmPyUOduHQmT-5oXNoJ1cCSqPTFQiSJAz-Dcirw_jro&e=>!
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> Message: 7
> Date: Fri, 5 Jul 2019 02:11:41 +0000
> From: "Levitt, Justin" <justin.levitt at lls.edu>
> To: Dan Meek <dan at meek.net>
> Cc: "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID: <C2E92E82-9AEA-477A-9FD9-670B62E20A85 at lls.edu>
> Content-Type: text/plain; charset="utf-8"
>
> I believe, but am not certain, that most mixed-member systems allow but do not require a party vote. So if independents do not wish to select a party in addition to selecting a local candidate, they need not do so. Seats are allotted in the legislature based on those who choose a party, and abstentions are tallied but do not affect the final calculation.
>
> I also believe that recent political science has repeatedly shown that the vast majority of voters who are ?independent? ? that is, not registered as a member of a party ? vote reliably for candidates of one of the two major parties. That is, most ?independents? do not wish to join a party, but vote most of the time as if they were a party member. In a mixed-member system, a vote for a party is a declaration of temporary preference, but not necessarily membership.
>
> And so my assumption ? and I?d welcome empirical analysis of the assumption ? is that many of Oregon?s non-affiliated voters would nevertheless vote for a party even if they did not wish to belong to one.
>
> --
> Justin Levitt
> justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
>
> On Jul 4, 2019, at 3:56 PM, Dan Meek <dan at meek.net<mailto:dan at meek.net>> wrote:
>
> Rick Pildes suggests " the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome."
>
> In Oregon very soon the largest group of voters will be the non-affiliateds, who already comprise 33% of all registered voters. How does the German system work when lots of voters join and support no party?
>
>
> Dan Meek
>
> 503-293-9021 dan at meek.net<mailto:dan at meek.net> 855-280-0488 fax
>
> On 7/4/2019 2:17 PM, Rob Richie wrote:
> I'm pleased that this exchange is happening on Independence Day, with its special connection to our nation's founding principles -- the meaning of being created equal, how best to ensure government is grounded in the consent of the governed, and what it might mean today for the people to act "to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
>
> i think Rick Pildes is right to be cautious about proposals like the Fair Representation Act for Congress, and he asks good question about how the single transferable vote (ranked choice voting in multi-winner districts) might work in elections to the US House.
>
> At the same time, we have a lot of data to help assess his questions and similar ones, and I'm looking forward to upcoming work being organized to evaluate such questions. In 2015, FairVote oversaw an important comparative analysis <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.fairvote.org%2fcomparative-structural-reform&c=E,1,b0U-t1AL7GNfsNB__oABRTTlKoiZT0oaDaX8TNi8cICA1-ik7DvNVdPjdKyJbrS5cDaTHQ-2Jsfh9CUTpiBBzm0-SfONEayZVhdUgJ9TYogUWdXasa5bkqGED5w,&typo=1> involving a lot of scholars active on this list or frequently cited that suggested a system like the Fair Representation Act would be the most positively consequential change we might do - and certainly more feasible than a mixed member system in a nation where half of states have five or fewer House seats.
>
> What I've seen suggests strongly it won't cost more to run and win seats within such a system, that racial minority voting rights would be expanded and better protected, that fair political outcomes the norm.and that every voter in every election would participate in a meaningfully contest where their vote mattered. Living in a Maryland community where I am directly represented by five county commissioners, four state legislators and two U.S Senators (as with all state residents without great complaint), I am comfortable with not being limited to one representative per legislative body. Having more than one representative is quite common in the United States, with 41 states having at least some multi-member state legislative districts as recently as the 1950s.
>
> Speaking to Steve's original post and some email traffic earlier on Rucho that legal scholars perhaps could do more to lay a legal theory driving their challenge, I think there's a real case to be made that "consent of the governed" clashes with winner-take-all elections in the modern era of politics. For all its virtues (which are real), independent redistricting will only marginally increase electoral competition and can result in exceptionally imbalanced representation. Witness California, which has an independent redistricting commission and a congressional delegation in which Republicans hold seven seats (13%) out of 53 today despite their nominees for president and governor averaging 35 percent of the vote in 2016 and 2018, Out of 53 California seats, 34 seats were won by landslides of 20% or more, and only five won by less than five percent.
>
> Consider what Justice Kagan says in her Rucho dissent in this revealing passage, - one that underscores that fairness is not a goal:
>
> << Everything in today?s opinion assumes that these cases grew out of a ?desire for proportional representation? or, more generally phrased, a ?fair share of political power.? Ante, at 16, 21. And everything in it assumes that the courts below had to (and did) decide what that fair share would be. But that is not so. The plaintiffs objected to one specific practice?the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. What was left after the practice?s removal could have been fair, or could have been unfair, by any number of measures. That was not the crux of this suit.>> [emphasis added]
>
> Without anything close to criticism of the plaintiffs and their attorneys in this for case,I , for one, would like to see legal theories developed that would lead to fairness actually being the crux of the case.
>
> Rob Richie
>
> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
> I support ranked-choice voting in certain kinds of elections, particularly for a single officeholder (Ned Foley's idea that States should use it in presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members of Congress. Take a State like NC, which might be carved up into three regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we would have 8-10 candidates running in a general election, across a third of the State, with voters having to rank them. My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person. I think a better approach, if we are going to think outside the box this far, is the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020 round. So for that, I still will focus on IRCs.
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> -----Original Message-----
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Steven John Mulroy (smulroy)
> Sent: Thursday, July 4, 2019 3:50 PM
> To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
>
> Rick Pildes does a good job explaining the practical tensions between partisan fairness and competitiveness, and between both and traditional districting criteria like compactness, contiguity, respect for political subdivision boundaries, and "communities of interest" (whatever that means). In my recent book Rethinking US Election Law, I argue that these tensions are inherent and irreconcilable, and reveal a fundamental flaw in our single member district, winner take all system. Thus, we should not assume that the ultimate I hope I iremedy is in independent Redistricting commissions (or IRCs, as Pildes calls them)
>
> . Rather, we should consider proportional representation approaches using multi member districts and ranked choice voting. They have many advantages beyond fixing the persistence of "natural gerrymanders" even with well intentioned IRC map-drawers. There should be a new piece about this soon in The New Republic.
>
> I hope reformers disappointed by Rucho don't rush to judgment towards IRCs as a perceived best practice.
>
>
> _______________________________________________
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>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Rob Richie
> President and CEO, FairVote
> 6930 Carroll Avenue, Suite 240
> Takoma Park, MD 20912
> rr at fairvote.org<mailto:rr at fairvote.org> (301) 270-4616 http://www.fairvote.org<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.fairvote.org&c=E,1,4zuTzM6ll327MCA9ZJLkrJK5WkXDWP7Vgfp0IQjjwqOarHCjrLX9K2nikm0jQljP01mwzeVry0sBiOlJtjGMn2sPEF9y3pp7am9hVpBuQhlNRnpynVMRntE3WTA,&typo=1>
> FairVote Facebook<https://www.facebook.com/FairVoteReform> FairVote Twitter<https://twitter.com/fairvote> My Twitter<https://twitter.com/rob_richie>
>
> Thank you for considering a donation<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.fairvote.org%2fdonate&c=E,1,VnSdOnBwHXR5kaCPJWzCRUGuSmMeZc-BgNxQmCAueZvlN77_Z43gDxsw2d91-k6Xr4sHE2DWroeVZSqdNOVv4Eolurf81my60Uazn3GsehBvqtePE5Jd8do,&typo=1>. Enjoy our video on ranked choice voting<https://youtu.be/CIz_nzP-W_c>!
> (Note: Our Combined Federal Campaign number is 10132.)
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> ------------------------------
>
> Message: 8
> Date: Fri, 5 Jul 2019 04:10:04 +0000
> From: "Steven John Mulroy (smulroy)" <smulroy at memphis.edu>
> To: Rob Richie <rr at fairvote.org>
> Cc: "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID: <87BC430C-22B7-4AD2-BD9F-0D92BAD80B74 at memphis.edu>
> Content-Type: text/plain; charset="utf-8"
>
> I think Rob Richie has it right. As to Rick Pildes' concerns, let me respond.
> "My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person."
>
> 1. Election costs would not go up as much as you might think. A candidate in such a multimember district would only need 17% to 25% of the vote, depending on the size of the multimember district. She would not need to do advertising and outreach to the entire district, but instead could target the geographic or demographic subsets that would work best for her. In an age of micro targeting, targeted direct mail, and social media, this would be eminently doable.
>
> 2. Voters in such districts would only have to gather enough info to weed out obvious disliked candidates (usually pretty easy to do) and then decide on their 1sr, 2nd, and 3rd choice. Most voters do not rank more than 3 even in the single winner RCV elections which Rick (I'm glad to hear) likes. They can use endorsers, party labels, media endorsements, and other heuristics to do the weeding and the ranking just as they do nowadays. And you can choose to rank as few or as many as you're comfortable with.
>
> 3. Actually, there would be MORE voters who felt like they had a rep who was "their person." Under single member district winner take all, usually 40% or so in each district end up feeling like "I didn't vote for THAT guy- he doesnt represent ME." Usually that same 40% feels that way time and again, leading to alienation. Under Proportional Representation, almost all voters can point to at least one representative and say "I voted for that person- she represents ME."
>
> Note that none of these concerns seemed fatal in Cambridge Mass or Minneapolis, where multimember district proportional representation has been used for decades. Ditto Australia, which has multimember PR Senate districts just as big as those in Rick's NC hypothetical.
>
> " But none of these changes are going to happen, certainly not for the 2020 round. " True only as long as we all tell ourselves that. And they said the same in Cambridge Mass and Minneapolis too.
>
> "So for that, I still will focus on IRCs."
> IRCs are certainly part of the solution. We should focus on them. Just not exclusively.
>
> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
> I support ranked-choice voting in certain kinds of elections, particularly for a single officeholder (Ned Foley's idea that States should use it in presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members of Congress. Take a State like NC, which might be carved up into three regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we would have 8-10 candidates running in a general election, across a third of the State, with voters having to rank them. My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person. I think a better approach, if we are going to think outside the box this far, is the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020 round. So for that, I still will focus on IRCs.
>
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> ------------------------------
>
> Message: 9
> Date: Fri, 5 Jul 2019 07:04:55 -0400
> From: Mark <markrush7983 at gmail.com>
> To: "Steven John Mulroy (smulroy)" <smulroy at memphis.edu>
> Cc: "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID:
> <CACsASVthvnShjOa5xU7HE6Fe2NtTMXu=PYqXm_tvRWEQ-6m9Lw at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> To the extent that PR w MMDs would remove the need for primaries, such a
> system could significantly lower the cost of elections.
>
> Bigger districts would make it easier to create minority representation
> oops w/o having to engage in the shuffling of voters around the margins of
> districts that we now engage in w SMDs
>
> In Virginia, the number of uncontested or virtually uncontested leg
> elections is appalling. Voters have no choice. W MMDs this would be
> resolved
>
> On Fri, Jul 5, 2019 at 00:10 Steven John Mulroy (smulroy) <
> smulroy at memphis.edu> wrote:
>
>> I think Rob Richie has it right. As to Rick Pildes' concerns, let me
>> respond.
>>
>> "My concerns are that this would raise the cost of elections; demand more
>>> of voters regarding information than is reasonable to expect; would leave
>>> voters without feeling they had a representative who was "their" person."
>>
>>
>> 1. Election costs would not go up as much as you might think. A candidate
>> in such a multimember district would only need 17% to 25% of the vote,
>> depending on the size of the multimember district. She would not need to do
>> advertising and outreach to the entire district, but instead could target
>> the geographic or demographic subsets that would work best for her. In an
>> age of micro targeting, targeted direct mail, and social media, this would
>> be eminently doable.
>>
>> 2. Voters in such districts would only have to gather enough info to weed
>> out obvious disliked candidates (usually pretty easy to do) and then decide
>> on their 1sr, 2nd, and 3rd choice. Most voters do not rank more than 3 even
>> in the single winner RCV elections which Rick (I'm glad to hear) likes.
>> They can use endorsers, party labels, media endorsements, and other
>> heuristics to do the weeding and the ranking just as they do nowadays. And
>> you can choose to rank as few or as many as you're comfortable with.
>>
>> 3. Actually, there would be MORE voters who felt like they had a rep who
>> was "their person." Under single member district winner take all, usually
>> 40% or so in each district end up feeling like "I didn't vote for THAT guy-
>> he doesnt represent ME." Usually that same 40% feels that way time and
>> again, leading to alienation. Under Proportional Representation, almost all
>> voters can point to at least one representative and say "I voted for that
>> person- she represents ME."
>>
>> Note that none of these concerns seemed fatal in Cambridge Mass or
>> Minneapolis, where multimember district proportional representation has
>> been used for decades. Ditto Australia, which has multimember PR Senate
>> districts just as big as those in Rick's NC hypothetical.
>>
>> " But none of these changes are going to happen, certainly not for the
>>> 2020 round. " True only as long as we all tell ourselves that. And they
>>> said the same in Cambridge Mass and Minneapolis too.
>>
>>
>> "So for that, I still will focus on IRCs."
>>
>> IRCs are certainly part of the solution. We should focus on them. Just not
>> exclusively.
>>
>>
>>>> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:
>>>
>>> I support ranked-choice voting in certain kinds of elections,
>>> particularly for a single officeholder (Ned Foley's idea that States should
>>> use it in presidential elections is a good one).
>>>
>>> I have been more skeptical about using MMDs and RCV when electing members
>>> of Congress. Take a State like NC, which might be carved up into three
>>> regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we
>>> would have 8-10 candidates running in a general election, across a third of
>>> the State, with voters having to rank them. My concerns are that this
>>> would raise the cost of elections; demand more of voters regarding
>>> information than is reasonable to expect; would leave voters without
>>> feeling they had a representative who was "their" person. I think a better
>>> approach, if we are going to think outside the box this far, is the hybrid
>>> German system, in which voter elect individual representatives from
>>> districts but there is also a party-based vote, and the overall
>>> representation reflects the correct PR outcome.
>>>
>>> But none of these changes are going to happen, certainly not for the 2020
>>> round. So for that, I still will focus on IRCs.
>>>
>>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
> --
> Mark Rush
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> ------------------------------
>
> Message: 10
> Date: Fri, 5 Jul 2019 12:04:56 +0000
> From: "Pildes, Rick" <rick.pildes at nyu.edu>
> To: "Levitt, Justin" <justin.levitt at lls.edu>, Dan Meek <dan at meek.net>
> Cc: "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID:
> <09C6C9D5F3987B4DAB90809228F227FAEA702A22 at XCHMB01.ad.law.nyu.edu>
> Content-Type: text/plain; charset="utf-8"
>
> On this issue, also: if we did go to a hybrid system like Germany?s, there would be many more parties running candidates than in our system. I think there are roughly 30 parties on the ballot in German elections (to win a seat, a party must get over the electoral threshold, which is 5% there). If you still can?t bring yourself to vote for any of those 30 parties, because you think politics should never require you to make any compromises with your ideals, then you can preserve your purity by abstaining, as Justin says.
>
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Levitt, Justin
> Sent: Thursday, July 4, 2019 10:12 PM
> To: Dan Meek <dan at meek.net>
> Cc: law-election at department-lists.uci.edu
> Subject: Re: [EL] Rick Pildes Guest Post
>
> I believe, but am not certain, that most mixed-member systems allow but do not require a party vote. So if independents do not wish to select a party in addition to selecting a local candidate, they need not do so. Seats are allotted in the legislature based on those who choose a party, and abstentions are tallied but do not affect the final calculation.
>
> I also believe that recent political science has repeatedly shown that the vast majority of voters who are ?independent? ? that is, not registered as a member of a party ? vote reliably for candidates of one of the two major parties. That is, most ?independents? do not wish to join a party, but vote most of the time as if they were a party member. In a mixed-member system, a vote for a party is a declaration of temporary preference, but not necessarily membership.
>
> And so my assumption ? and I?d welcome empirical analysis of the assumption ? is that many of Oregon?s non-affiliated voters would nevertheless vote for a party even if they did not wish to belong to one.
> --
> Justin Levitt
> justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
>
> On Jul 4, 2019, at 3:56 PM, Dan Meek <dan at meek.net<mailto:dan at meek.net>> wrote:
> Rick Pildes suggests " the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome."
>
> In Oregon very soon the largest group of voters will be the non-affiliateds, who already comprise 33% of all registered voters. How does the German system work when lots of voters join and support no party?
>
> Dan Meek
>
> 503-293-9021
>
> dan at meek.net<mailto:dan at meek.net>
>
> 855-280-0488 fax
>
>
> On 7/4/2019 2:17 PM, Rob Richie wrote:
>
> I'm pleased that this exchange is happening on Independence Day, with its special connection to our nation's founding principles -- the meaning of being created equal, how best to ensure government is grounded in the consent of the governed, and what it might mean today for the people to act "to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
>
> i think Rick Pildes is right to be cautious about proposals like the Fair Representation Act for Congress, and he asks good question about how the single transferable vote (ranked choice voting in multi-winner districts) might work in elections to the US House.
>
> At the same time, we have a lot of data to help assess his questions and similar ones, and I'm looking forward to upcoming work being organized to evaluate such questions. In 2015, FairVote oversaw an important comparative analysis <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252fwww.fairvote.org-252fcomparative-2Dstructural-2Dreform-26c-3DE-2C1-2Cb0U-2Dt1AL7GNfsNB-5F-5FoABRTTlKoiZT0oaDaX8TNi8cICA1-2Dik7DvNVdPjdKyJbrS5cDaTHQ-2D2Jsfh9CUTpiBBzm0-2DSfONEayZVhdUgJ9TYogUWdXasa5bkqGED5w-2C-26typo-3D1&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=xGLc4ZorCyhY1M8uMEjcX4yQaBSnIdabtt5yUPOSGM8&s=iw86dWZKth-Zbv6xKZJoyc6mUz_A7pMvatpAJG2tbeI&e=> involving a lot of scholars active on this list or frequently cited that suggested a system like the Fair Representation Act would be the most positively consequential change we might do - and certainly more feasible than a mixed member system in a nation where h
> alf of states have five or fewer House seats.
>
> What I've seen suggests strongly it won't cost more to run and win seats within such a system, that racial minority voting rights would be expanded and better protected, that fair political outcomes the norm.and that every voter in every election would participate in a meaningfully contest where their vote mattered. Living in a Maryland community where I am directly represented by five county commissioners, four state legislators and two U.S Senators (as with all state residents without great complaint), I am comfortable with not being limited to one representative per legislative body. Having more than one representative is quite common in the United States, with 41 states having at least some multi-member state legislative districts as recently as the 1950s.
>
> Speaking to Steve's original post and some email traffic earlier on Rucho that legal scholars perhaps could do more to lay a legal theory driving their challenge, I think there's a real case to be made that "consent of the governed" clashes with winner-take-all elections in the modern era of politics. For all its virtues (which are real), independent redistricting will only marginally increase electoral competition and can result in exceptionally imbalanced representation. Witness California, which has an independent redistricting commission and a congressional delegation in which Republicans hold seven seats (13%) out of 53 today despite their nominees for president and governor averaging 35 percent of the vote in 2016 and 2018, Out of 53 California seats, 34 seats were won by landslides of 20% or more, and only five won by less than five percent.
>
> Consider what Justice Kagan says in her Rucho dissent in this revealing passage, - one that underscores that fairness is not a goal:
>
> << Everything in today?s opinion assumes that these cases grew out of a ?desire for proportional representation? or, more generally phrased, a ?fair share of political power.? Ante, at 16, 21. And everything in it assumes that the courts below had to (and did) decide what that fair share would be. But that is not so. The plaintiffs objected to one specific practice?the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. What was left after the practice?s removal could have been fair, or could have been unfair, by any number of measures. That was not the crux of this suit.>> [emphasis added]
>
> Without anything close to criticism of the plaintiffs and their attorneys in this for case,I , for one, would like to see legal theories developed that would lead to fairness actually being the crux of the case.
>
> Rob Richie
>
> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
> I support ranked-choice voting in certain kinds of elections, particularly for a single officeholder (Ned Foley's idea that States should use it in presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members of Congress. Take a State like NC, which might be carved up into three regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we would have 8-10 candidates running in a general election, across a third of the State, with voters having to rank them. My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person. I think a better approach, if we are going to think outside the box this far, is the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020 round. So for that, I still will focus on IRCs.
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> -----Original Message-----
> From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Steven John Mulroy (smulroy)
> Sent: Thursday, July 4, 2019 3:50 PM
> To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
>
> Rick Pildes does a good job explaining the practical tensions between partisan fairness and competitiveness, and between both and traditional districting criteria like compactness, contiguity, respect for political subdivision boundaries, and "communities of interest" (whatever that means). In my recent book Rethinking US Election Law, I argue that these tensions are inherent and irreconcilable, and reveal a fundamental flaw in our single member district, winner take all system. Thus, we should not assume that the ultimate I hope I iremedy is in independent Redistricting commissions (or IRCs, as Pildes calls them)
>
> . Rather, we should consider proportional representation approaches using multi member districts and ranked choice voting. They have many advantages beyond fixing the persistence of "natural gerrymanders" even with well intentioned IRC map-drawers. There should be a new piece about this soon in The New Republic.
>
> I hope reformers disappointed by Rucho don't rush to judgment towards IRCs as a perceived best practice.
>
>
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> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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> ------------------------------
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> Message: 11
> Date: Fri, 5 Jul 2019 14:05:35 +0000
> From: "Pildes, Rick" <rick.pildes at nyu.edu>
> To: "Steven John Mulroy (smulroy)" <smulroy at memphis.edu>, Rob Richie
> <rr at fairvote.org>
> Cc: "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Rick Pildes Guest Post
> Message-ID:
> <09C6C9D5F3987B4DAB90809228F227FAEA7032F7 at XCHMB01.ad.law.nyu.edu>
> Content-Type: text/plain; charset="utf-8"
>
> I?m open to persuasion on MMDs with RCV for Congress, I just have various concerns I am still unresolved about.
>
> Steve says voters only need to be able to rank 3 candidates, which political science tells us is probably the limit for informed voting. But notice this is in tension with one of the major arguments for RCV, which is that it ensures candidates are not elected without majority support. If a region is electing 5 members to Congress, and most voters only rank 3, some candidates will be elected without majority vote.
>
> I agree the Australia Senate is our best practice experience with this. But members to the lower chamber there are elected from traditional single-member districts. That means residents do have a local representative they know is ?theirs.? Particularly in the US, it is less well-off residents who need a congressional office they can to for help navigating the government bureaucracy, to help with their concerns/needs about benefit programs of various sorts and other services. If we talk about MMDs for the US House, we are talking about 5 representatives for a region of 3.5 M people, in a place like NC. In regions with a major urban center, I wonder whether most of those elected will come from that center (and exacerbate the rural/urban divide that is already among the major issues in many democracies today). I?d be curious to learn if that?s been an issue in certain states in Australia. Even if that?s not a problem, though, I wonder if voters will actually feel they have a repr
> esentative they can turn to, because they voted for that person, even though that representative lives 400 miles away. How many local offices will these members of Congress have to open across 1/3rd of NC to be able to provide these direct connections to constituents? Where are they going to get the resources to staff these offices, when those who voted for them might be scattered across a third of the State?
>
> Lastly, on Mark?s question of whether we could use this system to get rid of primaries: if we think about that concretely, with 5 seats to fill, the two major parties will likely field 5 candidates each, bringing us to 10. Impossible to know how many primary challenges from within the major parties, but let?s say 2 in each party, so we are up to 14. Of course, one of the arguments for MMDs with RCV is also that it will allow other parties to flourish, so let?s imagine 5 candidates from other parties. We are now talking about an election with nearly 20 candidates, with voters willing and able to rank maybe 3 of them. If you want to retain primary elections and fold them into a single election day, that?s the scenario I see.
>
> I?m sure Rob Riche will have thorough answers for all this, including explaining why it?s a good thing that a candidate from the ?Motoring Enthusiast Party? got one of six seats in the Australian Senate from Victoria, even though only 0.5% of voters ranked him as their first choice candidate.?
>
> I?ll read any responses with interest but that?s it from me on this issue for a while, since work beckons.
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Sq. So.
> NYC, NY 10012
> 212 998-6377
>
> From: Steven John Mulroy (smulroy) [mailto:smulroy at memphis.edu]
> Sent: Friday, July 5, 2019 12:10 AM
> To: Rob Richie <rr at fairvote.org>
> Cc: Pildes, Rick <rick.pildes at nyu.edu>; law-election at department-lists.uci.edu
> Subject: Re: [EL] Rick Pildes Guest Post
>
> I think Rob Richie has it right. As to Rick Pildes' concerns, let me respond.
> "My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person."
>
> 1. Election costs would not go up as much as you might think. A candidate in such a multimember district would only need 17% to 25% of the vote, depending on the size of the multimember district. She would not need to do advertising and outreach to the entire district, but instead could target the geographic or demographic subsets that would work best for her. In an age of micro targeting, targeted direct mail, and social media, this would be eminently doable.
>
> 2. Voters in such districts would only have to gather enough info to weed out obvious disliked candidates (usually pretty easy to do) and then decide on their 1sr, 2nd, and 3rd choice. Most voters do not rank more than 3 even in the single winner RCV elections which Rick (I'm glad to hear) likes. They can use endorsers, party labels, media endorsements, and other heuristics to do the weeding and the ranking just as they do nowadays. And you can choose to rank as few or as many as you're comfortable with.
>
> 3. Actually, there would be MORE voters who felt like they had a rep who was "their person." Under single member district winner take all, usually 40% or so in each district end up feeling like "I didn't vote for THAT guy- he doesnt represent ME." Usually that same 40% feels that way time and again, leading to alienation. Under Proportional Representation, almost all voters can point to at least one representative and say "I voted for that person- she represents ME."
>
> Note that none of these concerns seemed fatal in Cambridge Mass or Minneapolis, where multimember district proportional representation has been used for decades. Ditto Australia, which has multimember PR Senate districts just as big as those in Rick's NC hypothetical.
>
> " But none of these changes are going to happen, certainly not for the 2020 round. " True only as long as we all tell ourselves that. And they said the same in Cambridge Mass and Minneapolis too.
>
> "So for that, I still will focus on IRCs."
> IRCs are certainly part of the solution. We should focus on them. Just not exclusively.
>
> On Thu, Jul 4, 2019 at 4:28 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
> I support ranked-choice voting in certain kinds of elections, particularly for a single officeholder (Ned Foley's idea that States should use it in presidential elections is a good one).
>
> I have been more skeptical about using MMDs and RCV when electing members of Congress. Take a State like NC, which might be carved up into three regions for MMDs; the regions would elect 4, 4, and 5 candidates. So we would have 8-10 candidates running in a general election, across a third of the State, with voters having to rank them. My concerns are that this would raise the cost of elections; demand more of voters regarding information than is reasonable to expect; would leave voters without feeling they had a representative who was "their" person. I think a better approach, if we are going to think outside the box this far, is the hybrid German system, in which voter elect individual representatives from districts but there is also a party-based vote, and the overall representation reflects the correct PR outcome.
>
> But none of these changes are going to happen, certainly not for the 2020 round. So for that, I still will focus on IRCs.
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> ------------------------------
>
> Message: 12
> Date: Fri, 5 Jul 2019 14:57:28 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] ELB News and Commentary 7/5/19
> Message-ID: <C9E7660A-CD1D-4EF3-8110-5ACC01F93B7E at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End?<https://electionlawblog.org/?p=106084>
> Posted on July 5, 2019 7:47 am<https://electionlawblog.org/?p=106084> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> I thought I?d pull together some thoughts on the issue of whether the Trump Administration will try again to add a citizenship question to the census, after sharing some earlier thoughts across this blog, to NPR<https://www.npr.org/2019/07/04/738791493/how-the-trump-administration-could-still-add-a-citizenship-question-to-the-censu>, and at Slate<https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html>.
>
> The day the opinion came out<https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html> I saw that Chief Justice Roberts left an opening for a do-over by the Trump Administration. Whether it is because Roberts changed his mind<https://electionlawblog.org/?p=106030> in the drafting process or not, Chief Justice Roberts? opinion for the Court in Department of Commerce<https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf> offers many more reasons why the government could include a citizenship question on the census than why it could not. The ?could not? came down to the fact that it was undisputed that the reason Secretary Ross cave for including the question?to help bring Voting Rights Act claims to favor Hispanics?was a pretext. (No one who brings such cases needs citizenship data from the census, and the Trump Administration is bringing no such cases) And later released secret documents from the Hofeller files show that the real
> intent was to boost white, Republican voting power which would hurt Latinos. This pretext was too much for Roberts, joined in this part of his opinion by the liberal Justices. (The other conservative Justices were willing to simply ignore the pretext and accept the government?s unbelievable claims on face value.)
>
> Many thought the Court?s ruling would be the end, because the government had represented all along that the printing needed to happen beginning July 1 (though the plaintiffs said it could happen as late as October, at a higher cost). The government appeared to concede the case was over, there were reports of the Trump cave, and a Trump tweet turned everything around. With pressure from people like the Federalist Society?s Leonard Leo<https://electionlawblog.org/?p=106066>, Trump is forcing his Justice Department to look for a new pretext for including the question. (His own tweets suggests he wants to know the number of non-legal residents, but the proposed census question does not ask about legality of residence, only citizenship.)
>
> The DOJ lawyers are in a bind because they know that it can?t be just a pretext, and yet the President is ordering them to act. This puts them in an ethical dilemma, one which seemed to catch them off guard<https://electionlawblog.org/?p=106038>.
>
> But assuming at least some political folks are willing to do Trump?s bidding, the government could indicate it is working on a new set of reasons for including the question. As Marty Lederman has suggested, it could be as simple as citing to footnote 1 in Justice Alito?s separate opinion in Department of Commerce: ?As a 2016 Census Bureau guidance document explained, obtaining citizenship statistics is ?essential for agencies and policy makers setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination.? The reasons could be in a statement from Secretary Ross, or an executive order from the President.
>
> Some say the executive order could help things for the Administration, since the President is not subject to the Administrative Procedure Act and doesn?t have to offer reasons for his actions.
>
> But the problem for the administration is that there are injunctions in place preventing the inclusion of the question, whether or not the APA applies. And if it still looks like the Administration is offering a pretext, I do not expect the lower courts to lift those injunctions. (There has even been talk of the Administration simply ignoring the courts<https://www.foxnews.com/politics/gop-congressman-trump-ignore-supreme-court-print-census-citizenship-question>, which would create a constitutional crisis.)
>
> If the administration goes forward with the new reason, there will be a quick resolution of the equal protection claim in the Maryland Court. (This is the claim that the question was added with the intent to discriminate on the basis of race.) This is an issue the Supreme Court never decided, and would present an independent ground to block the question. And the lower court judge in the Department of Commerce case also would have to be convinced that any new reason is not a new pretext.
>
> This means that if the Administration pushes the issue, it is going to be back before the Supreme Court, during the summer, with Justices scattered and new clerks in place. I said earlier that Chief Justice Roberts left a window open, but he left it open for a DOJ and Administration to act in a savvy way. These reversals and rule via tweet smack of amateur hour. This has got to be annoying Roberts, who is no doubt paying attention.
>
> So it still all comes down to Roberts, if the administration wishes to push this hard. And I don?t know what Roberts will do, but the last two weeks have not helped the Administration?s case.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106084&title=Gaming%20Out%20the%20Census%20Citizenship%20Question%20Endgame%3A%20What%20Comes%20Next%2C%20and%20How%20Will%20Things%20End%3F>
> Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> ?The worst part about DOJ?s reversal on the census is the lack of deliberation?<https://electionlawblog.org/?p=106082>
> Posted on July 5, 2019 7:24 am<https://electionlawblog.org/?p=106082> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Harry Litman WaPo oped<https://www.washingtonpost.com/opinions/2019/07/04/worst-part-about-dojs-reversal-census-is-lack-deliberation/?utm_term=.bb58c9c660d2>.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106082&title=%E2%80%9CThe%20worst%20part%20about%20DOJ%E2%80%99s%20reversal%20on%20the%20census%20is%20the%20lack%20of%20deliberation%E2%80%9D>
> Posted in census litigation<https://electionlawblog.org/?cat=125>, Department of Justice<https://electionlawblog.org/?cat=26>
>
>
> ELB Symposium: Partisan Gerrymandering After Rucho [Complete List of Symposium Posts]<https://electionlawblog.org/?p=105878>
> Posted on July 5, 2019 7:20 am<https://electionlawblog.org/?p=105878> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> During this week, I posted some great contributions from a number of important election law voices on the future of partisan gerrymandering after the Supreme Court?s opinion in Rucho<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf>. Thanks to all for participating!
>
> Here are the posts:
>
> Michael Solimine: State Courts as Forums for Federal Partisan Gerrymandering Claims after Common Cause v. Rucho (Rucho Symposium)<https://electionlawblog.org/?p=105902>
>
> Ned Foley: Blame the Constitution, Not the Court (Rucho Symposium)<https://electionlawblog.org/?p=105875>
>
> Joey Fishkin: Rucho: A Sinkhole Dangerously Close to the House (Rucho symposium)<https://electionlawblog.org/?p=105928>
>
> Deborah Hellman: Partisan Gerrymandering and Campaign Finance: An interesting relationship (Rucho symposium)<https://electionlawblog.org/?p=105952>
>
> Nick Stephanopoulos: The Denouement of Kennedy?s Retirement (Rucho Symposium)<https://electionlawblog.org/?p=105881>
>
> Bruce Cain: Back to Institutional Basics (Rucho Symposium)<https://electionlawblog.org/?p=105884>
>
> Franita Tolson: Taking the Elections Clause Seriously after Rucho v. Common Cause (Rucho symposium)<https://electionlawblog.org/?p=105963>
>
> Sam Issacharoff: When Constraint Fails (Rucho Symposium)<https://electionlawblog.org/?p=105887>
>
> Tam Cho: For Partisan Gerrymandering, an Ounce of Prevention is Worth a Pound of Cure (Rucho Symposium)<https://electionlawblog.org/?p=105985>
>
> Keith Gaddie: After Rucho: Fifty Thickets (Rucho Symposium)<https://electionlawblog.org/?p=105918>
>
> Rick Pildes: What Do Voters Think Independent Redistricting Commissions Should Do? (Rucho Symposium)<https://electionlawblog.org/?p=106024>
>
> Justin Levitt: The Soft Bigotry of Low Legislative Expectations (Rucho Symposium)<https://electionlawblog.org/?p=105968>
>
> Mike Parsons: Rucho?s Antidemocratic Instinct: ?This is not law.? (Rucho Symposium)<https://electionlawblog.org/?p=105956>
>
> Michael Morley: Rucho, Legal Fictions, and the Judicial Models of Voters (Rucho Symposium)<https://electionlawblog.org/?p=106008>
>
> Guy Charles and Luis Fuentes-Rohwer: Rucho: Democracy and Banality (Rucho symposium)<https://electionlawblog.org/?p=106062>
>
> Moon Duchin: How to Reason from the Universe of Maps (The Normative Logic of Map Sampling) (Rucho symposium)<https://electionlawblog.org/?p=106069>
>
> Rebecca Green: A Spade is a Spade (Rucho Symposium)<https://electionlawblog.org/?p=106071>
>
> Sam Wang: Resolving the proportional representation problem for state courts (Rucho Symposium)<https://electionlawblog.org/?p=106055>
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105878&title=ELB%20Symposium%3A%20Partisan%20Gerrymandering%20After%20Rucho%20%5BComplete%20List%20of%20Symposium%20Posts%5D>
> Posted in Uncategorized<https://electionlawblog.org/?cat=1>
>
>
> Sam Wang: Resolving the proportional representation problem for state courts (Rucho Symposium)<https://electionlawblog.org/?p=106055>
> Posted on July 5, 2019 7:15 am<https://electionlawblog.org/?p=106055> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> The following is a guest post from Sam Wang<https://scholar.princeton.edu/wanglab/about>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
>
> Chief Justice Roberts?s decision in Rucho v. Common Cause expresses a paradox: (a) gerrymandering a map for political advantage goes against the Constitution, yet (b) the five-vote majority couldn?t find a way to ascertain when it has occurred. This stance has the consequence of disregarding the careful work of five lower courts in Wisconsin, North Carolina, Maryland, Ohio, and Michigan.
>
> Resolving this conflict is not simply of academic significance. State courts may yet act to curb partisan gerrymandering under their laws and constitutions. Surely some of the same questions will arise.
>
> Today I want to answer Roberts?s concern about ?proportional representation,? which was also expressed by Justice Kavanaugh in oral arguments. I think this particular problem arises from poor communication between scientists and lawyers.
>
> Justice Roberts?s disproportionate error
>
> Roberts?s decision cited the problem of ?proportional representation? as an impediment to establishing a standard of fairness. He asserts that claims of partisan gerrymandering rely on an assumption about what would be appropriate levels of representation. Specifically, he says that the number of seats is not guaranteed for a given number of votes cast statewide ? a quota of sorts.
>
> Smart lawyers may object: nobody is arguing for proportional representation. But I don?t think Roberts and Kavanaugh meant literal proportionality, i.e. 40% of the vote should translate to 40% of the seats. Roberts objects to any diagnostic tool that uses the number of seats won by either party. This recalls Justice O?Connor?s warning that a standard might ?evolve towards some loose form of proportionality.?
>
> I suggest that we can make a distinction between (a) those ways of determining fairness that count wins and losses, and (b) those that don?t. This may fly in the face of intuition. After all, partisans gerrymander to win as many seats as possible. But suspend that for a moment.
>
> To be sure, some tests use wins and losses for their calculation. The efficiency gap comes to mind, as well as partisan bias. In the Harvard Law Review Blog<https://blog.harvardlawreview.org/an-antidote-for-gobbledygook-organizing-the-judges-partisan-gerrymandering-toolkit-into-a-two-part-framework/> and Election Law Journal<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3158123> I argue that these tests measure inequity of outcome, which answers the question ?did the parties get a fair share of seats?? In other words, a loose form of proportionality.
>
> But another concept that can be tested: inequity of opportunity, i.e. did both parties have similar opportunity to win seats? This concept echoes existing concepts in discrimination law and fits with previous doctrine on racial gerrymandering ? a must if we are ever to have a coherent doctrine of fair districting.
>
> Defining a racial gerrymander is a mature subject. Was a group packed? Then it would have lopsidedly large wins. Was a group cracked between districts? Then its opponents would have carefully arranged, narrow wins. A court can inspect individual districts for evidence of packing and cracking by race. It can also do so for party.
>
> If a court is willing to look at an aggregated statewide pattern of legislative-district-level election returns, here are examples of tests that probe for inequity of opportunity:
>
> Lopsided wins<https://www.stanfordlawreview.org/print/article/three-tests-for-practical-evaluation-of-partisan-gerrymandering/>. in a closely-divided state like North Carolina, are one side?s wins more lopsided than the other?s? The t-test, perhaps the most widely used statistical test in all the sciences, does this.
>
> Uniform wins<https://web.math.princeton.edu/~sswang/wang16_ElectionLawJournal_gerrymandering-MD-WI_.pdf>. In a party-dominated state like Maryland, were the wins engineered to be very uniform, thus protecting the majority party? The chi-square test does this.
>
> Map-simulation methods<http://election.princeton.edu/2019/03/08/carnegie-mellon-princeton-stanford-brief-in-rucho-v-common-cause/>. Wesley Pegden, Moon Duchin, Jonathan Mattingly, and others have done large-scale map simulation to detect if a plan produces an outlier in terms of the number of seats. Those methods could just as easily detect an outlier for some other quantity, like the lopsidedness of one side?s wins. Map-simulation methods have the advantage of using a state?s specific geography and thus adapting to peculiar circumstances such as the clustering of one side?s voters.
>
> An opportunity-and-outcome framework can be used in state courts. In a forthcoming article, Rick Ober, Ben Williams, and I review how all fifty state constitutions<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3335622> contain rights and protections which can be used to bring a partisan gerrymandering claim. These include analogues of the First and Fourteenth Amendments; guarantees of pure, free, and fair elections; and redistricting-specific guarantees such as geographic compactness. Because each of these protections involves either individualized or associational harms, the Roberts and Kagan opinions in Gill v. Whitford offer state courts guidance for how to apply their own constitutional provisions to a partisan gerrymandering claim. And even Roberts?s opinion in Rucho invites the states to act.
>
> Of course, some mental adjustments are necessary. Legal scholarship on election law has focused on federal courts. I think it?s time to focus that intellectual firepower on state courts ? and to let go of what scientists mean when they say ?proportional.?
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106055&title=Sam%20Wang%3A%20Resolving%20the%20proportional%20representation%20problem%20for%20state%20courts%20(Rucho%20Symposium)>
> Posted in Uncategorized<https://electionlawblog.org/?cat=1>
>
>
> ?The Shocking Final Count in the Queens District Attorney Race: What Happened?<https://electionlawblog.org/?p=106075>
> Posted on July 5, 2019 7:09 am<https://electionlawblog.org/?p=106075> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> NYT<https://www.nytimes.com/2019/07/04/nyregion/katz-caban-recount-queens-da.html>:
>
> Almost immediately after the news broke of Ms. Katz?s breakthrough, people began speculating about more nefarious explanations.
> In particular, Ms. Cab?n?s supporters have accused the Queens County Democratic Party, whose leaders supported Ms. Katz, of engineering the disqualification of so many affidavit ballots. They pointed out that the commissioners of the Board of Elections are selected by the county party leaders, before being approved by the City Council.
>
> Shaun King, a prominent progressive activist, wrote on Twitter that the Queens County Democratic machine had tried to ?steal? the election for Ms. Katz. State senators Alessandra Biaggi and Julia Salazar, who won their seats last year by challenging incumbent Democrats from the left, also blamed Ms. Katz or the county commissioner for Ms. Cab?n falling behind.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106075&title=%E2%80%9CThe%20Shocking%20Final%20Count%20in%20the%20Queens%20District%20Attorney%20Race%3A%20What%20Happened%E2%80%9D>
> Posted in chicanery<https://electionlawblog.org/?cat=12>
>
>
> ?It?s Not Just the White House in 2020. The Power to Draw Maps Is Also at Stake.?<https://electionlawblog.org/?p=106073>
> Posted on July 5, 2019 7:01 am<https://electionlawblog.org/?p=106073> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> NYT reports.<https://www.nytimes.com/2019/07/05/us/gerrymandering-state-legislatures-elections.html>
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106073&title=%E2%80%9CIt%E2%80%99s%20Not%20Just%20the%20White%20House%20in%202020.%20The%20Power%20to%20Draw%20Maps%20Is%20Also%20at%20Stake.%E2%80%9D>
> Posted in redistricting<https://electionlawblog.org/?cat=6>
>
>
> Rebecca Green: A Spade is a Spade (Rucho Symposium)<https://electionlawblog.org/?p=106071>
> Posted on July 5, 2019 7:00 am<https://electionlawblog.org/?p=106071> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> The following is a guest post from Rebecca Green<https://law2.wm.edu/faculty/bios/fulltime/rgreen.php>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
>
> The Rucho<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> decision is hard to get your head around. Plaintiffs presented two clean cases with clear ?smoking guns?: partisan gerrymanders in which legislators unabashedly muted the voices of voters from opposing parties through line-drawing trickery. As many commenters have since noted, that a majority of justices were unable to call a spade a spade will trouble anyone who cares<https://www.theatlantic.com/ideas/archive/2019/07/rucho-v-common-cause-occasion-sorrow/593227/> about giving voters a fair shake in the democratic process.
>
> What Rucho means for racial discrimination in districting is less clear. For decades now, court after court has attempted to untangle racial and partisan motivations of line drawers. Will Rucho mark the end of this slog? Will every line drawer who sorts voters by race simply cite political ends<https://supreme.justia.com/cases/federal/us/532/234/> as the predominant motivating factor to escape racial gerrymandering rulings?
>
> Recent experience in Virginia suggests it will not be so simple. I observed a morning of testimony in the remand trial of Bethune Hill v. Virginia<https://www.brennancenter.org/sites/default/files/legal-work/BH_v_VABoardofElections_Opinion_06.26.18.pdf>. The witness that day was the guy who sat at the computer drawing Virginia?s lines in 2011. In question after question he proclaimed that his decisions were guided purely by partisanship. Asked about one line drawing decision, he said it had been crafted to draw a democratic legislator out of her district. Asked about another he explained that protecting a Republican incumbent supplied his motivation. At every turn and in every instance he offered partisanship (or as the post-trial brief<http://redistricting.lls.edu/files/VA%20bethune%2020170926%20VA%20House%20pretrial%20brief.pdf> termed it ?continuity, core protection, and incumbent protection?) as the sole motivator.
>
> His confessions on the stand seemed incredible?my non-lawyer seatmate expressed shock that the witness admitted to such bare partisan motive. Of course, North Carolina line drawers were just as bold<https://www.ncleg.gov/Files/GIS/ReferenceDocs/2016/CCP16_Adopted_Criteria.pdf> with the same goal in mind: to avoid a racial gerrymander ruling.
>
> Will the tactic of citing partisan motives to get off the racial gerrymandering hook work? It didn?t in Virginia. Plaintiffs in Bethune Hill convinced a majority of the three-judge district court on remand that partisan claims were pretext?that racial considerations were unconstitutionally driving line drawing decisions in the challenged districts.
>
> This outcome is especially possible in states where race and party don?t map onto each other reliably. As Justin Levitt<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3173933&download=yes>, Rick Hasen<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>, and others have pointed out, in some states the correlation between minority voters voting for Democrats and Anglo voters voting for Republicans is high. But in other states, like Florida, North Carolina and Virginia, the correlation doesn?t map as closely?lots of non-minority voters vote for Democrats. In those states, a map drawn to shut out Democrats can look different than a map that harms minority voters (or a map that tries to shut out Democrats by harming minorities as Justin explains<https://twitter.com/_justinlevitt_/status/1144302666622758913>). That?s the essence of the holding in Bethune Hill.
>
> This outcome suggests that Rucho will not change the calculus in racial gerrymandering claims. Maps? defenders will continue to assert bald partisanship?now without fear of a partisan gerrymandering consequence. But racial gerrymandering claims will not go away.
>
> Before last week?s decision, Rucho held the promise of eradicating behaviors that drive the worst gerrymanders out there: efforts to use fine-grained data about voters?racial and political?to maximize partisan gain. If Rucho had ruled partisan gerrymandering unconstitutional, defendants in racial gerrymandering cases would have far less to hide behind. As it stands now, we are in for more of the same: minority plaintiffs who have been packed and cracked with abandon left with no recourse but racial gerrymandering claims (and/or complex, hard-to-prove VRA Section 2 vote dilution claims if the facts fit). As Pam Karlan argued in her Whitford amicus<https://campaignlegal.org/sites/default/files/16-1161%20BSAC%20Law%20Professors%20Pam%20Karlan%20et%20al.pdf>, it would have been a lot cleaner to call a spade a spade.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106071&title=Rebecca%20Green%3A%20A%20Spade%20is%20a%20Spade%20(Rucho%20Symposium)>
> Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> Moon Duchin: How to Reason from the Universe of Maps (The Normative Logic of Map Sampling) (Rucho symposium)<https://electionlawblog.org/?p=106069>
> Posted on July 5, 2019 6:56 am<https://electionlawblog.org/?p=106069> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> The following is a guest post from Moon Duchin<https://mduchin.math.tufts.edu/>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
>
> Justice Kagan?s dissent in Rucho states in its opening paragraphs: ?The majority?s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims? They do not require?indeed, they do not permit?courts to rely on their own ideas of electoral fairness, whether proportional representation or any other.?
>
> She?s talking about something called the ?ensemble method? or the ?extreme outlier approach.? I think there?s still a fair amount of confusion in the election law community about the logic of ensembles, and (with some notable exceptions!) scholars have been surprisingly slow to take up the challenge of tailoring a legal approach to fit this newly sharpened evidentiary tool.
>
> The essence of the ensemble approach is just this: no measurable properties of districts come with obvious ?neutral baselines?; rather, baselines can only be discovered by comparing a map to the whole universe of alternatives that hold the state?s rules and voters constant. For instance, you can construct a representative sample of North Carolina congressional plans that meet the rules and are drawn without partisan goals, and check to see whether 10-3 is an extreme outcome (it is) and whether individual districts have partisan compositions that are extremely skewed relative to the alternatives (they do). From there it is logical to argue that votes have been diluted?instrumentalized to realize partisan goals, and not given their full weight, power, and value?and that outlier status gives evidence of intent as well as effect. See the Amicus Brief of Mathematicians, Law Professors, and Students<https://mggg.org/SCOTUS-MathBrief.pdf>.
>
> As Justin Levitt wrote at SCOTUSblog<https://www.scotusblog.com/2019/02/symposium-clarity-of-the-record-should-bring-clarity-of-purpose/>: ?Dilution depends on knowing what the baseline should be. You only know that a drink is diluted when you know it falls outside a normal range of what it should taste like. You only know that a district is diluted when you know it falls outside the normal range of what its composition should be.? Good news, Justin! There?s a tool for that.
>
> Why does the dissent back away from other metrics favored by advocates?
>
> If you think proportionality is a non-starter because it prescribes S=V (seat share = vote share), then you are unlikely to prefer efficiency gap, which prescribes S=2V-?.
>
> And unfortunately partisan symmetry is just as much a standard that requires predominant attention to careful arrangement of district lines around partisan data. All partisan symmetry-based scores (partisan bias, mean-median, etc) report an ideally fair plan if there is symmetry in the pattern of vote shares by district: no matter what state you are assessing and what its rules and voting patterns may be, an outcome with 37%, 47%, 57%, and 67% in four districts earns the plan a suite of perfect symmetry scores, and one with 37%, 47%, 57%, and 60% does not. (See Katz-King-Rosenblatt preprint<https://gking.harvard.edu/files/psym_2.pdf> for a survey; this follows from Definition 1 and Assumption 3.)
>
> This makes those scores problematic in the logic of the dissent: ?Judges should not be apportioning political power based on their own vision of electoral fairness, whether proportional representation or any other.? (dissent p14)
>
> And again: ?Contrary to the majority?s suggestion, the District Courts did not have to?and in fact did not?choose among competing visions of electoral fairness. That is because they did not try to compare the State?s actual map to an ?ideally fair? one (whether based on proportional representation or some other criterion). Instead, they looked at the difference between what the State did and what the State would have done if politicians hadn?t been intent on partisan gain. Or put differently, the comparator (or baseline or touchstone) is the result not of a judge?s philosophizing but of the State?s own characteristics and judgments.? (dissent p22-23)
>
> Does the ensemble approach also devolve to prescribing a seats outcome?
>
> No. Kagan cites the Massachusetts example (see Math Brief<https://mggg.org/SCOTUS-MathBrief.pdf> p25-26) at length (dissent p24) which shows that the ensemble method requires neither proportionality nor symmetry from a state whose political geography is the driver of non-intuitive outcomes.
>
> A relative standard?
>
> In other words, doesn?t this approach produce baselines that vary among states and over time, because the rules and vote patterns themselves will vary?
>
> Yes? ?But that is a virtue, not a vice?a feature, not a bug.? (dissent p25)
>
> How many standard deviations?
>
> ?And we can see where the State?s actual plan falls on the spectrum?at or near the median or way out on one of the tails? The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.? (dissent p19)
>
> This is one place where Kagan?s phrasing could lead to a problematic interpretation that the median is the ideal. The logic of the ensemble method works best when it disallows outliers but does not choose among the vast body of remaining options. At best, it proscribes rather than prescribes.
>
> And finally, it?s no more incumbent upon a court to set a global threshold or limit here than it is for, say, population deviation, where 19-person deviation could be problematic with respect to one set of facts, but 76-person deviation<http://www.ncsl.org/research/redistricting/2010-ncsl-redistricting-deviation-table.aspx> could be acceptable for another.
>
> A word of caution and a path forward
>
> Not all computer methods are equally sound! The science of map sampling has made enormous strides in the last two years, and has crystallized around the use of Markov chains, which come with strong mathematical guarantees. Law scholars and litigators should collaborate with academics to get the best science (representative sampling with an appropriate distributional design) paired with the best legal thinking. As we move to state-level challenges and to best practices for commissions, this gives us a clear path forward.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106069&title=Moon%20Duchin%3A%20How%20to%20Reason%20from%20the%20Universe%20of%20Maps%20(The%20Normative%20Logic%20of%20Map%20Sampling)%20(Rucho%20symposium)>
> Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> Guy Charles and Luis Fuentes-Rohwer: Rucho: Democracy and Banality (Rucho symposium)<https://electionlawblog.org/?p=106062>
> Posted on July 5, 2019 6:00 am<https://electionlawblog.org/?p=106062> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> The following is a guest post from Guy Charles<https://law.duke.edu/fac/charles/> and Luis Fuentes-Rohwe<https://www.law.indiana.edu/about/people/bio.php?name=fuentes-rohwer-luis>r, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
>
> One would be hard-pressed to find a more hackneyed Supreme Court opinion than Chief Justice Roberts?s majority opinion in Rucho. It is replete with mis-directions, such as the boogeyman of proportionality when the plaintiffs expressly eschewed proportional representation as an end; unburdened by its tautological reasoning, such as the attempt to distinguish the population equality cases from partisan gerrymandering on the ground that population equality is constitutionally required but partisanship is not prohibited by the Constitution; and it displays a faux judicial modesty that has become a Roberts staple?it?s not us, he writes, but the Constitution, or the Framers, or the responsibility of Congress (recall Shelby County). Roberts firmly rejects the sensible individual rights, right-to-vote framing anchored in the Fourteenth and First Amendments. Instead, he casts the case, bizarrely, as a structural invitation for the Court to allocate political power between two dominant poli
> tical parties, an invitation any sane person would reject.
>
> These moves were unsurprising. As we noted in this<https://harvardlawreview.org/wp-content/uploads/2018/11/236-275_Online.pdf> Article for the Harvard Law Review, there?s a story that the Court tells itself, what we called the narrative of nonintervention, once it decides not to regulate the ground rules of the democratic process. The narrative of nonintervention relies on distinctions that are as predictable as they are unpersuasive. Rucho is the narrative?s latest installment. Once Roberts decided against judicial review, he had a clear script to follow and he followed that script. In the end, however, it is hard to take the case seriously as doctrine. Justice Kagan?s dissent is a masterclass in laying bare the banality of the majority?s reasoning.
>
> What worries us most about Rucho are the expressive messages communicated by the case. Three are particularly concerning. First, Rucho unequivocally communicates the Roberts Court?s deregulatory posture. The Court majority seems to favor a no-holds barred, anything and everything goes, political process. The only ground rules that the conservative majority is willing to enforce are constitutional rules striking down political spending limits and to a much lesser extent political contribution limits. This Court turns the Madisonian experiment on its head; it understands and furthers a constitutional project that protects the power of the politically powerful.
>
> Second, we?re concerned about what Rucho might mean for the use of race under section 2 of the Voting Rights Act and the use of race under the Fourteenth Amendment. In the wake of Rucho, parties will once again find it hard to resist packaging partisan gerrymandering objections as racial gerrymanders or as racial vote dilution claims and vice versa, racial gerrymanders as partisan gerrymanders. Because different regulatory rules apply to similar phenomena, this presents an arbitrage opportunity. Our worry is that the conservative majority on the Court will exacerbate the problem by making clear that race-blindness is the constitutional standard in the law and politics domain. Current doctrine is almost there anyway. This will of course make it harder for voters of color to prove racial discrimination, unless the discrimination is absolutely clear and easy to prove.
>
> Third, we are concerned that Rucho might send a message that extreme partisanship is normatively desirable both as means and ends. As we?ve previously<https://harvardlawreview.org/wp-content/uploads/2018/11/236-275_Online.pdf> observed, ?the failure to hold the line on partisan manipulation in the domain of political gerrymandering sends a message of tacit approval of the manipulation of electoral rules for maintaining or acquiring partisan power in other domains.? Additionally, given the expressive nature of Supreme Court decisions, state actors may readily conclude that extreme partisanship can?t be objectionable if the Supreme Court decided not to do anything about it. Put differently, the political process solutions that the Court maintains are available outside of the federal judiciary are not independent of the Court?s decision in Rucho. Rucho seemed propitious because the tide appeared to be turning against extreme partisanship and in favor of fairness and legislation toward
> the public good. The question is whether Rucho will be an outlying point in what seemed like a slow march toward fairness, or whether it will be a significant contributor to a reversal.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106062&title=Guy%20Charles%20and%20Luis%20Fuentes-Rohwer%3A%20Rucho%3A%20Democracy%20and%20Banality%20(Rucho%20symposium)>
> Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> Since Trump Tweet, Justice Department Lawyers Trying to Come Up with New Pretext for Including Citizenship Question on Census; Federalist Society?s Leonard Leo Pushing Trump To Do This Despite Supreme Court Ruling<https://electionlawblog.org/?p=106066>
> Posted on July 4, 2019 8:40 pm<https://electionlawblog.org/?p=106066> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Washington Post:<https://www.washingtonpost.com/politics/trump-administration-scrambles-to-save-citizenship-question-on-census/2019/07/04/238fe3fa-9e85-11e9-9ed4-c9089972ad5a_story.html?utm_term=.c16e6b4ce9ab>
>
> Trump was furious and thought the Commerce Department and the Justice Department ? which has been arguing the case ? had given up the fight too easily. He complained about Chief Justice John G. Roberts Jr.,who he said he thinks is lined up against him, the adviser and senior officials said. Trump also complained about Ross.
>
> Before Trump?s tweets plunged their week into chaos, Justice officials thought the president understood how few legal options remained, according to people familiar with the matter. They had earlier told the White House that the case was a dead-end and that pursuing it would be a waste of time.
>
> Those people said that Attorney General William P. Barr had talked to Trump and had tried to explain his limited options after the Supreme Court?s ruling.
>
> After the Supreme Court called the government?s reason for the question ?contrived,? many wondered how the government could suddenly come up with a new rationale.
>
> ?What were they going to say?? said Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union and a lead attorney for plaintiffs in the New York lawsuit. ? ?Here?s our real reason? Or here?s a new reason?? Well, that?s kind of reverse engineering on a decision that?s already been made, which was the very definition of pretextual. .?.?. We had them in an inevitable checkmate.?
>
> But since Trump?s tweet, Justice Department lawyers have been working furiously to find a way to appease him and devise a legal maneuver that would allow the question to be added with the Supreme Court?s blessing. As they deliberated options Thursday, the lawyers were pessimistic about their chances, according to people familiar with the matter, who spoke on the condition of anonymity to describe internal deliberations.
>
> Not all Republicans agreed with Trump?s decision to plunge back into the fight. And some moderate Republicans and Trump advisers characterized it as a waste of time. ?The census is part of the legacy of our Founding Fathers. There?s no reason to weaponize it in a country that was, is and will be composed of immigrants,? said Dan Eberhart, a prominent GOP donor.
>
> But conservative legal figures ? including Leonard Leo, head of the Federalist Society ? have been especially vocal in urging Trump not to stop fighting for the citizenship question, according to advisers close to Trump.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106066&title=Since%20Trump%20Tweet%2C%20Justice%20Department%20Lawyers%20Trying%20to%20Come%20Up%20with%20New%20Pretext%20for%20Including%20Citizenship%20Question%20on%20Census%3B%20Federalist%20Society%E2%80%99s%20Leonard%20Leo%20Pushing%20Trump%20To%20Do%20This%20Despite%20Supreme%20Court%20Ruling>
> Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> Rob Richie on CSPAN Tomorrow Morning, Talking Election Reform and Gerrymandering<https://electionlawblog.org/?p=106064>
> Posted on July 4, 2019 2:34 pm<https://electionlawblog.org/?p=106064> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Watch.<https://www.c-span.org/video/?462254-4/washington-journal-rob-richie-discusses-election-reform-gerrymandering>
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106064&title=Rob%20Richie%20on%20CSPAN%20Tomorrow%20Morning%2C%20Talking%20Election%20Reform%20and%20Gerrymandering>
> Posted in Uncategorized<https://electionlawblog.org/?cat=1>
>
>
> On NPR?s All Things Considered, Talking About the Latest Census Developments<https://electionlawblog.org/?p=106060>
> Posted on July 4, 2019 2:27 pm<https://electionlawblog.org/?p=106060> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> You can listen here<https://www.npr.org/2019/07/04/738791493/how-the-trump-administration-could-still-add-a-citizenship-question-to-the-censu>.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106060&title=On%20NPR%E2%80%99s%20All%20Things%20Considered%2C%20Talking%20About%20the%20Latest%20Census%20Developments>
> Posted in census litigation<https://electionlawblog.org/?cat=125>
>
>
> Michael Morley: Rucho, Legal Fictions, and the Judicial Models of Voters (Rucho Symposium)<https://electionlawblog.org/?p=106008>
> Posted on July 4, 2019 1:00 pm<https://electionlawblog.org/?p=106008> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> The following is a guest post from Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
>
> The Supreme Court?s recent ruling in Rucho v. Common Cause<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf>presents competing judicial conceptions of American voters. Justice Kagan?s dissent encourages courts to employ an ?evidence-based, data-based, statistics-based? approach when considering political gerrymandering claims. Its constitutional conclusions are at least partly contingent upon legislative facts<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2722584> about voter behavior.
>
> Under this data-driven view, political party affiliation or preference is typically recognized as the overwhelmingly salient factor<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3396178> in most voters? decision-making. Voters are often presented as predictably voting for the same political party<https://www.supremecourt.gov/DocketPDF/18/18-422/91353/20190308145641704_2019-03-08%20Amicus%20Brief%20of%20Political%20Science%20Professors.pdf>, regardless of the candidate. Voters, candidates, and even distinct legislative races within a state are treated as largely fungible<https://www.supremecourt.gov/DocketPDF/18/18-422/90673/20190305115500844_18-422%20Brief%20of%20LWVNC_Revised_Final.pdf>. For example, the dissent concludes that North Carolina?s congressional districts were politically gerrymandered, in part because district-level data from past elections showed that thousands of alternate possible maps drawn without regard to partisan considerations would have resulted in th
> e election of additional Democratic Representatives. Such comparisons among different possible maps implicitly assume that each voter would continue to vote for candidates of the same party, regardless of those candidates? identities or how the districts were drawn. The dissent criticizes the majority?s reliance on ?unsupported and out-of-date musings about the unpredictability of the American voter.?
>
> The majority, in contrast, treats most of that data as irrelevant, viewing voters as more multidimensional and indeterminate. It is reluctant to invalidate redistricting plans based on ?prognostications as to the outcomes of future elections,? about which ?neither judges nor anyone else can have any confidence.? It cautions that predictions about ?electoral outcomes? are unreliable because many models ?are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time.? At first blush, the opinions appear to be disputing the accuracy and utility of political science in predicting voter behavior. I suggest that they reflect a more fundamental disagreement over whether constitutional law should be based on empirical data about voters or, instead, constitutionally rooted irrebuttable presumptions about them?i.e., legal fictions.
>
> The majority?s approach appears to be based on a judicially created construct or model of the American voter. Rather than surveying empirical data to ascertain voter behavior, the majority?s reasoning assumes that voters are reasonably well-informed about politics and our government?s structure, carefully consider information about the candidates and major issues in each election, and decide?likely on an office-by-office basis?whom to support. The majority asserts that voters? ?selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates? campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.? Under this approach, a voter?s future behavior cannot be extrapolated based on her party affiliation or voting patterns.
>
> Similarly, a court applying this model cannot assume a person will automatically vote for a particular party?s candidate regardless of how legislative district lines are drawn. District boundaries determine the identities of the candidates in a race, their platforms and political messaging, and the most salient issues impacting the district?all factors central to the model voter?s choice. The majority?s model does not facilitate the type of statewide aggregation among distinct legislative races, or comparisons among different hypothetical legislative maps, upon which most standards for identifying unconstitutional political gerrymandering depend.
>
> The majority?s voter model is not an anomalous artifice contrived specifically for Rucho, but ratherunderlies Supreme Court rulings across a wide range of election-related disputes. For example, the Court repeatedly has invalidated limits on independent expenditures in part because it deems political advertisements ?essential? for ?the citizenry to make informed choices among candidates for office.? Buckley v. Valeo<https://www.law.cornell.edu/supremecourt/text/424/1#writing-USSC_CR_0424_0001_ZO>. Likewise, the Court has held that political parties have a First Amendment right to be free of most types of governmental interference when nominating candidates. California Democratic Party v. Jones<https://www.law.cornell.edu/supct/html/99-401.ZO.html>. It has characterized a party?s nominee for public office as the party?s ?ambassador to the general electorate in winning [voters] over to the party?s views? on ?the most significant public policy issues of the day.? Eu v. San Francis
> co Cnty. Democratic Cent. Comm.<https://supreme.justia.com/cases/federal/us/489/214/>
>
> The Court has similarly recognized the need to protect minor parties? access to the ballot, partly because ?candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters? assessments of national problems.? Anderson v. Celebrezze<https://supreme.justia.com/cases/federal/us/460/780/>. Even apart from election law, areas such as anti-commandeering doctrine, see Printz v. United States<https://supreme.justia.com/cases/federal/us/521/898/>, and Spending Clause jurisprudence, see NFIB v. Sebelius<https://www.law.cornell.edu/supremecourt/text/11-393#writing-11-393_OPINION_3>, are heavily influenced by a desire to maintain clear lines of accountability so that presumably interested and informed voters can hold the proper government officials accountable for their policies. The fabric of constitutional law has generally been woven with an ideali
> zed conception of voters in mind.
>
> Although the majority?s model is empirically contestable, we may have constitutionally compelling reasons for nevertheless maintaining it. The judicially construed model voter cares about candidates, issues, political messages, and electoral accountability. Robust constitutional protection for candidate selection, political communications, and electoral choice?along with certain federalism-based protections for states?is accordingly critical. A vibrant judicial model of politically engaged, unpredictable voters may provide a firmer, more fixed foundation for many important constitutional rights and other structural limitations on government than periodically updated and potentially changing empirical observations about voters?even though they may be more accurate.
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106008&title=Michael%20Morley%3A%20Rucho%2C%20Legal%20Fictions%2C%20and%20the%20Judicial%20Models%20of%20Voters%20(Rucho%20Symposium)>
> Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>
>
>
> --
> 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/
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> ------------------------------
>
> Message: 13
> Date: Fri, 5 Jul 2019 17:09:32 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] further developments in census case
> Message-ID: <96B10459-6B55-4D85-8CEF-CE2813FF0DA4 at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> You can follow the thread here:
> https://twitter.com/rickhasen/status/1147188857357524993
>
>
>
> --
> 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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> ------------------------------
>
> Message: 14
> Date: Fri, 5 Jul 2019 18:19:15 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] census
> Message-ID: <E69EBCDF-63BE-442D-836F-2455B411E455 at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> Breaking: DOJ Tells Federal Court It May Have New Rationale Later for Including the Census Question, Wants to Stop Discovery Now Because a New Decision Would Be Cleaned of Animus (Citing Travel Ban Case)
> Posted on July 5, 2019 11:08 am<https://electionlawblog.org/?p=106089> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> In a new filing<https://www.justsecurity.org/wp-content/uploads/2019/07/DOJ.StatusReport.MD_.census.pdf>, the Department of Justice has told the federal district court in Maryland considering whether the addition of the citizenship question on the census was done for reasons of racial animus that the government may still come forward with a reason for including the question. Further, the government argues that any new reason would have to be judged by its own terms, as the courts did in the travel ban case. It wants to stop all discovery of bad motives for the original decision as no longer relevant.
>
> This is quite an act of political chutzpah. To begin with, one doesn?t start from a decision and then reserve engineer a rationale to support it. Either there is a reason for including the citizenship question or there is not.
>
> Second, and more importantly, DOJ is arguing for what Joshua Matz has termed ?animus cleansing<https://takecareblog.com/blog/thoughts-on-the-chief-s-strategy-in-the-census-case>.? Forget if we had discriminatory racial intent before in adding a question, DOJ argues, because any new decision would be fresh and pure. And because of this purity, there?s no need to look whether the government had discriminatory intent to start with. Presto! Nothing to see here court, please move on.
>
> As I wrote earlier today,<https://electionlawblog.org/?p=106084> I don?t expect the lower courts to buy it. And I think this case is likely to proceed in the trial court on the question of discriminatory animus. If DOJ keeps pressing forward, this entire mess will be back in Chief Justice Roberts? lap over the summer.
>
> [This post has been updated.]
> [Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106089&title=Breaking%3A%20DOJ%20Tells%20Federal%20Court%20It%20May%20Have%20New%20Rationale%20Later%20for%20Including%20the%20Census%20Question%2C%20Wants%20to%20Stop%20Discovery%20Now%20Because%20a%20New%20Decision%20Would%20Be%20Cleaned%20of%20Animus%20(Citing%20Travel%20Ban%20Case)>
> Posted in Uncategorized<https://electionlawblog.org/?cat=1> permalink<https://electionlawblog.org/?p=106089>
>
>
> --
> 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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