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

Sat Jun 29 10:31:30 PDT 2019

Is it not even remotely possible that those symmetry tests (and other
similar statewide tests) that SCOTUS rejected in Gill and rejected again in
Rucho need some work?  They are based on the assumption that partisan votes
in one district are equatable to partisan votes in another.  I know it
takes on the entire profession to say this, but  poli sci research has
shown that this is not true.

Getting rid of the single member district  and moving to nonpartisan
commissions would go a long way towards resolving our collective concerns
about gerrymandering.

On Fri, Jun 28, 2019 at 4:13 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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-- 
Mark Rush
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