[EL] Justice Alito and Bethune-Hill II dissent

Mon Jun 17 10:07:58 PDT 2019

But, even if we assume the strongest version of your argument -- that
district preferences have only a marginal impact on legislators' behavior
once partisanship is taken into account -- all that this is saying is that
partisan control of a legislature is of paramount importance. And in many
cases gerrymandering can switch legislative control from one party to the
other, especially when partisanship in the electorate is divided nearly
50-50.

So I don't think it's accurate to interpret the political science
literature as supporting the idea that partisan gerrymandering has little
real-world impact.

David

On Mon, Jun 17, 2019 at 11:42 AM Nicholas Stephanopoulos <
nicholas.stephanopoulos at gmail.com> wrote:

> The passages Rick highlights are also notable for their romantic, but
> inaccurate, view of contemporary legislative representation. Justice Alito
> writes: "The interests and views of these constituents generally have an
> important effect on everything that a legislator does." He continues: "When
> the boundaries of a district are changed, the constituents and communities
> of interest present within the district are altered, and this is likely to
> change the way in which the district’s representative does his or her work."
>
> In fact, today's representatives are shockingly *unresponsive* to their
> constituents' preferences. The partisan mix of constituents determines
> whether a Democrat or a Republican is elected. But once that partisan
> choice is made, constituents' views largely stop mattering. Here, for
> example, is a chart from a recent article
> <https://dspace.mit.edu/handle/1721.1/119500> by Devin Caughey, Chris
> Tausanovitch, and Chris Warshaw, showing the relationship between state
> legislative districts' partisan makeups and state legislators' voting
> records. There is obviously a huge difference between Democrats' and
> Republicans' voting records. But *within* the group of Democratic or
> Republican legislators, there is essentially no connection at all between a
> district's partisan composition and its legislator's voting record.
> Representatives from safe Democratic or Republican districts are
> practically indistinguishable from representatives from competitive seats.
>
> [image: image.png]
>
>
>
> On Mon, Jun 17, 2019 at 10:03 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:
>
>> Justice Alito has always had a particularly keen interest in
>> redistricting, which I assume traces to his father’s involvement with the
>> redistricting pro0cess during his work with the New Jersey legislature.
>> Thus, I am not surprised he wrote the dissent in today’s case.  Leaving
>> aside the standing issue itself, his dissent includes many noteworthy
>> statements about how much redistricting affects what legislatures do and
>> the laws they produce.  Here’s a sampling of the comments that stood out to
>> me.  These comments, in my view, are in considerable tension with one
>> argument Justice Scalia made in his plurality opinion in *Vieth, *in
>> which he argues it is “impossible to assess the effects of partisan
>> gerrymandering” because who knows how voters will vote from election to
>> election.  From Justice Alito today:
>>
>>
>>
>> “A legislative districting plan powerfully affects a legislative body’s
>> output of work.”
>>
>>
>>
>> “…it matters a lot how voters with shared interests and views are
>> concentrated or split up. The cumulative effects of all the decisions that
>> go into a districting plan have an important impact on the overall work of
>> the body. All of this should really go without saying.”
>>
>>
>>
>> “Districting matters because it has institutional and legislative
>> consequences.  … To suggest otherwise, to argue that substituting one plan
>> for another has no effect on the work or output of the legislative body
>> whose districts are changed, would really be quite astounding.  If the
>> selection
>>
>> of a districting plan did not alter what the legislative body does, why
>> would there be such pitched battles over redistricting efforts?”
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> 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 *Rick Hasen
>> *Sent:* Monday, June 17, 2019 10:26 AM
>> *To:* Election Law Listserv <law-election at uci.edu>
>> *Subject:* [EL] Bethune-Hill II decided
>>
>>
>>
>>
>>
>>
>> Supreme Court, on 5-4 Vote in Bethune-Hill Racial Gerrymandering Case
>> from Virginia, Concludes Va. House of Delegates Lacks Standing to Pursue
>> Challenge.
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D105642&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=FpfO4LiwXDfmif3zgrUNj4juhgqgho8lWIo63sKCiOo&e=>
>>
>> Posted on June 17, 2019 7:23 am
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D105642&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=FpfO4LiwXDfmif3zgrUNj4juhgqgho8lWIo63sKCiOo&e=>
>>  by *Rick Hasen*
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D3&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=uZSQJtx2EQGpq5dQNkZYFpA8qItLE3oW7K_nPhRfOKg&e=>
>>
>> You can find the opinion here
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.supremecourt.gov_opinions_18pdf_18-2D281-5F6j37.pdf&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=-eqGbLe_46bYNVszNMUeLGtUOwnDGfrGVgUDwGbxVEA&e=>
>> .
>>
>>
>>
>>
>>
>> [image: Share]
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.addtoany.com_share-23url-3Dhttps-253A-252F-252Felectionlawblog.org-252F-253Fp-253D105642-26title-3DSupreme-2520Court-252C-2520on-25205-2D4-2520Vote-2520in-2520Bethune-2DHill-2520Racial-2520Gerrymandering-2520Case-2520from-2520Virginia-252C-2520Concludes-2520Va.-2520House-2520of-2520Delegates-2520Lacks-2520Standing-2520to-2520Pursue-2520Challenge.&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=pEZ-vkzgDAke9pEK4Au6nCMftiNs8luH4CzFM4kppU0&e=>
>>
>> Posted in Uncategorized
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D1&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=XMCxIWmTvMBgIgdj7qfbL1XlNv3RUijCIhDu8p8hQCw&e=>
>>
>>
>>
>> --
>>
>> 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
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uci.edu_faculty_full-2Dtime_hasen_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=s-KnLREcuWUR5qVy5dQEgy-jtUifKDZ6SI5vqxBreck&e=>
>>
>> http://electionlawblog.org
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=_2J9rzVzu3gPDSXJg5OKMnwid2ezSVNsHzv84W0rd4I&s=i3p78VEhKbm61EUU-rLv8N-L6ObJfAHf6hN9PE5aPkY&e=>
>>
>> [image: signature_537431996]
>>
>>
>> _______________________________________________
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>
>
>
> --
> Nicholas O. Stephanopoulos
> Professor of Law
> Herbert and Marjorie Fried Research Scholar
> University of Chicago Law School
> nsteph at uchicago.edu
> (773) 702-4226
> http://www.law.uchicago.edu/faculty/stephanopoulos
> _______________________________________________
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