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

Fri Jun 28 13:29:40 PDT 2019

Though note that Kagan extensively discusses the seat and vote figures from
which asymmetry metrics are calculated -- and not just in order to compare
these figures to the performance of the computer-generated maps.

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

In 2012, Republican candidates won 9 of the State’s 13 seats in the U. S.
House of Representatives, although they received only 49% of the statewide
vote. In 2014, Republican candidates increased their total to 10 of the 13
seats, this time based on 55% of the vote.

In 2016, Republican congressional candidates won 10 of North Carolina’s 13
seats, with 53% of the statewide vote. Two years later,Republican
candidates won 9 of 12 seats though they received only 50% of the vote.

In the four elections that followed (from 2012 through 2018), Democrats
have never received more than 65% of the statewide congressional vote. Yet
in each of those elections, Democrats have won (you guessed it) 7 of
8 House seats.

Take Pennsylvania. In the three congressional elections occurring under the
State’s original districting plan (before the State Supreme Court struck it
down), Democrats receivedbetween 45% and 51% of the statewide vote, but won
only5 of 18 House seats.

Or go next door to Ohio. There, in four congressional elections, Democrats
tallied between 39% and 47% of the statewide vote, but never won more than
4 of 16 House seats.

On Fri, Jun 28, 2019 at 3:13 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> In light of the exchanges here about how much attention symmetry tests did
> or didn’t receive in the Roberts opinion, it seems odd not to mention that
> these tests received *no *attention at all in Justice Kagan’s dissent.
> When she lays out her approach for how the courts should determine when
> unconstitutional partisan gerrymandering has occurred, she relies entirely
> on the use of alternative, non-partisan maps to determine whether an
> enacted plan is enough of an outlier to be unconstitutional (of course,
> direct evidence of intent is also relevant).
>
>
>
> The only time she even mentions symmetry tests is in note 4, to which she
> relegates a brief description of the District Court’s additional reliance
> on such tests.  Even then, she does not actually say anything about whether
> she endorses this approach.   The note just provides a brief description of
> what the District Court did.
>
>
>
> 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 *Nicholas Stephanopoulos
> *Sent:* Friday, June 28, 2019 11:44 AM
> *To:* Levitt, Justin <justin.levitt at lls.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] symmetry really got short shrift in Rucho
>
>
>
> 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
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> --
>
> Nicholas O. Stephanopoulos
> Professor of Law
>
> Herbert and Marjorie Fried Research Scholar
> University of Chicago Law School
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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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