[EL] symmetry really got short shrift in Rucho

[Nicholas Stephanopoulos]

He clearly understood; see all his passages in *Whitford* last year
discussing symmetry. But that was a concept in which Kennedy was
interested, not Roberts. So with Kennedy off the Court, Roberts could just
return to calling everything proportionality if it involved seats and votes
(much like Scalia did in *Vieth*).

---------------------

Relevant to this case, an amicus brief in support of the LULAC plaintiffs
proposed a “symmetry standard” to “measure partisan bias” by comparing how
the two major political parties “would fare hypothetically if they each . .
. received a given percentage of the vote.” 548 U. S., at 419 (opinion of
KENNEDY, J.). JUSTICE KENNEDY noted some wariness at the prospect of
“adopting a constitutional standard that invalidates a map based on unfair
results that would occur in a hypothetical state of affairs.” Id., at 420.
Aside from that problem, he wrote,the partisan bias standard shed no light
on “how much partisan dominance is too much.” Ibid. JUSTICE KENNEDY
therefore concluded that “asymmetry alone is not a reliable measure of
unconstitutional partisanship.” Ibid.

Justice Stevens would have found that the Texas map was a partisan
gerrymander based in part on the asymmetric advantage it conferred on
Republicans in converting votes to seats. Id., at 466–467, 471–473 (opinion
concurring in part and dissenting in part). Justice Souter, writing for
himself and JUSTICE GINSBURG, noted that he would not “rule out the utility
of a criterion of symmetry,” and that “further attention could be devoted
to the administrability of such a criterion at all levels of redistricting
and its review.” Id., at 483–484 (opinion concurring in part and dissenting
in part).

Third, the plaintiffs offered evidence concerning the impact that Act 43
had in skewing Wisconsin’s statewide political map in favor of Republicans.
This evidence, which made up the heart of the plaintiffs’ case, was derived
from partisan-asymmetry studies similar to those discussed in LULAC. The
plaintiffs contend that these studies measure deviations from “partisan
symmetry,” which they describe as the “social scientific tenet that
[districting] maps should treat parties symmetrically.” Brief for Appellees
37.

We need not doubt the plaintiffs’ math. The difficulty for standing
purposes is that these calculations are an average measure. They do not
address the effect that a gerrymander has on the votes of particular
citizens. Partisan-asymmetry metrics such as the efficiency gap measure
something else en- tirely: the effect that a gerrymander has on the
fortunes of political parties.


On Thu, Jun 27, 2019 at 11:50 PM Levitt, Justin <justin.levitt at lls.edu>
wrote:

> A vote for willful misrepresentation.  Claiming “the Constitution doesn’t
> require proportionality” is a handy strawman.
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Rick Hasen
> *Sent:* Thursday, June 27, 2019 9:46 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] symmetry really got short shrift in Rucho
>
>
>
> It is like a reprise of the Gill oral argument and sociological
> gobbledygook: does the Chief Justice not understand the difference between
> proportional representation arguments and symmetry arguments, or did he
> just willfully misrepresent the position of many of the plaintiffs? They
> couldn’t have made it clearer.
>
>
>
>
>
> --
>
> 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
>
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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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