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

[Michael Parsons]

To be honest, I think Nick's earlier point -- i.e., that Roberts' opinion
is fundamentally disingenuous in its arguments and reasoning -- maybe
addresses this point too.  Roberts feigned ignorance about the meaning of
the outlier method and he feigned ignorance about symmetry, but he also
took "partisan advantage is a legitimate/permissible interest" as a
starting point for his analysis even though the legal/theoretical arguments
contesting this assumption were before him as well (both in the briefs and
in the underlying legal scholarship).  Kagan points out in her dissent that
this assumption is unjustified and that all of the "neutral" examples of
"competing visions of electoral fairness" differ in type, not degree.
Roberts attempts to ground this starting-point assumption in precedent
(e.g., *Gaffney*) so that he doesn't have to try and justify it on its own
terms, but (1) the precedent doesn't truly support this position (as
Levitt, Kang, and I have argued), and (2) given the contested state of the
law, the majority could have decided otherwise in *Rucho* anyway since the
arguments were before it.

At the end of the day, I think Roberts wanted this outcome, and so he said
whatever he felt he needed to say, and he declined to engage with any
arguments that might complicate that outcome.  I think both the lawyers
involved and the underlying scholarship (legal and otherwise) split in
different directions based on reasonable disagreements over theoretical
first principles *and* lawyering strategies, but the majority opinion
ignores the inconvenient parts from all camps while focusing on the
weaknesses of all camps in a way that's internally inconsistent and
dishonest in its portrayal of what those in each camp were arguing.

Apologies for the cynicism -- reading this opinion really got to me.

On Fri, Jun 28, 2019 at 5:27 PM Guy-Uriel E. Charles <charles at law.duke.edu>
wrote:

> My point is not about lawyering.  It’s about scholarship and specifically
> about legal scholarship.
>
> On Jun 28, 2019, at 5:23 PM, Pildes, Rick <rick.pildes at nyu.edu> wrote:
>
> Guy,
> As part of the Common Cause legal team in the North Carolina case, I can
> tell you that the work of Michael Kang and Justin Levitt significantly and
> directly influenced the structure of arguments Common Cause made.
>
>
> *From:* Guy-Uriel E. Charles [mailto:charles at law.duke.edu
> <charles at law.duke.edu>]
> *Sent:* Friday, June 28, 2019 4:37 PM
> *To:* Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] symmetry got no shrift at all in Justice Kagan's
> dissent in Rucho
>
> Rick raises an interesting point.  I’ve been struck by the mismatch
> between the substantive focus of the opinions in Rucho and the legal
> academic literature.  I wonder if legal academics were insufficiently
> attentive to the legal/theoretical questions raised by the cases and too
> focused on the empirical/political science issues.  To be a bit more
> precise, I wonder if the focus on EG and symmetry standards overshadowed
> what should have been a healthy debate about the legal/theoretical
> questions that a number of legal academics, (C. Elmendorf, M. Kang, J.
> Levitt, Charles/Fuentes-Rowher among others) attempted to raise. We all
> tend to see Rucho through our own priors.  And I will admit to that bias in
> this case.  But again, I was surprised by what seemed to me to an asymmetry
> (sorry) between the focus of the opinions in Rucho and the legal academic
> literature.
>
>
> On Jun 28, 2019, at 4:08 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
> <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
> nsteph at uchicago.edu
> (773) 702-4226
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