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

Fri Jun 28 19:48:51 PDT 2019

And to clarify—I don’t mean the law professors acting as counsel in the cases.  I mean the legal scholarship—as Guy suggests.

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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Marc Elias <MElias at perkinscoie.com>
Date: Friday, June 28, 2019 at 10:45 PM
To: Guy-Uriel Charles <charles at law.duke.edu>, "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

As a practicing lawyer with four recent Supreme Court cases involving racial gerrymandering, I think Guy is exactly right.  As an observer to the partisan gerrymandering claims, I was struck at how much the law professors morphed into quantitative social scientists – like the ones lawyers typically use as expert witnesses.  While political scientists play an essential role in these cases, it’s not clear why the legal scholars didn’t spend more time bolstering a coherent legal theory and let the political scientists handle the math.  That is not to say that the legal theories advanced in these cases were not coherent (they largely were), but the contribution by law professors seemed less legal and more quantitative.

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Marc E. Elias
Perkins Coie LLP
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Guy-Uriel Charles <charles at law.duke.edu>
Date: Friday, June 28, 2019 at 5:27 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

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<mailto: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]
Sent: Friday, June 28, 2019 4:37 PM
To: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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<mailto: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<mailto:justin.levitt at lls.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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<mailto: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<mailto: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<mailto: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.

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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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University of Chicago Law School
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