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

Fri Jun 28 18:07:32 PDT 2019

Unfortunately, the bare recitation of seats-votes outcomes plays into
the narrative of the majority that a gerrymander exists through the
resulting deviation from proportionality.

On Fri, Jun 28, 2019 at 03:29:40PM -0500, Nicholas Stephanopoulos wrote:
> 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/
> > <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttp-253a-252f-252fwww.law.uci.edu-252ffaculty-252ffull-2Dtime-252fhasen-252f-26c-3DE-2C1-2CqtVSaqz0B2vqt8S376CZOFPX50l2RU-2D16hFdm12bdSVFFWLXvDTIRzQteCOd86SOl11mYnJU7mTfRu0e6As7F3gncxMycvRutVI9hNZQACeKM-5Fs1qYAt-26typo-3D1&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=YRlwV86RY-mwyXsfqi6g2w2X8myY2mhCpppM56JpQQs&s=xMY5VaxLZKqE-YVQgnXQNRyuPMM5dp3TWd9gLPs9pbc&e=>
> >
> > http://electionlawblog.org
> > <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttp-253a-252f-252felectionlawblog.org-252f-26c-3DE-2C1-2CwtR1Y0Xj7USme-5FfcDKZNy7w0ckB-2Dpx6BsOza8yHM-2D6dwvJY6VDddHbtYL6A9PCQt3-5FxVba1WoUf6x8qRMl1H2H2-5F0JaOBocWgzekvcE-2DkJVOCMftav-5F2-26typo-3D1&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=YRlwV86RY-mwyXsfqi6g2w2X8myY2mhCpppM56JpQQs&s=JVzFWZ-VlzC6-wbJMuDrEzNH8lkFT2ouXFCEsjs9uKA&e=>
> >
> > [image: signature_1987881029]
> >
> >
> >
> >
> >
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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
> > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uchicago.edu_faculty_stephanopoulos&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=YRlwV86RY-mwyXsfqi6g2w2X8myY2mhCpppM56JpQQs&s=TRODn1WRXAll25_zgZjF2UJOg5HPgGnUkgehJxxClRQ&e=>
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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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-- 
Greg Warrington
Associate {Chair,Professor}
Department of Mathematics & Statistics
University of Vermont
gswarrin at uvm.edu
http://www.cems.uvm.edu/~gswarrin/
(802) 656-2195