[EL] Breaking: New York’s Highest Court, on 4-3 Vote, Strikes Down State’s Congressional Districting as Violating the State Constitution Because It Was Enacted with Partisan Intent; Special Master Will Draw the Lines

[Pildes, Rick]

It now occurs to me that a further implication of Nick’s view would seem to be that voters should not adopt state constitutional amendments that prohibit or constrain partisan gerrymandering.  The same arguments would apply:  just as state courts cannot act in a nationwide coordinated manner, so too individual state initiatives to constrain partisan gerrymandering cannot be coordinated into a single, uniform nationwide approach.

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: Jon Sherman [mailto:jsherman at fairelectionscenter.org]
Sent: Thursday, April 28, 2022 11:04 AM
To: Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
Cc: Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Breaking: New York’s Highest Court, on 4-3 Vote, Strikes Down State’s Congressional Districting as Violating the State Constitution Because It Was Enacted with Partisan Intent; Special Master Will Draw the Lines

If the goal is proportional representation in Congress, and if (someday) there is a window of a little d democratic majority that sees the virtue in that and is willing to kill the filibuster (even if only temporarily or only for pro-democracy bills), why not impose a system of proportional representation on the states? Instead of debating which judicial doctrines or legislative rules might curtail partisan gerrymandering if they were applied or played out in the same way in all 50 states, why not just do away with districts entirely for Congress? I don't know if there's polling on this, but I suspect that the overwhelming majority of American voters would prefer that the members of Congress they vote for be able to effect their policy preferences when they win a majority of US House votes, instead of the dubious satisfaction of knowing you (and 760,000 other residents) "have" a member of Congress, who represents some highly imperfect and arbitrary slice of land that no one actually personally identifies with. (I'm sure there are others on this list who have made this argument more eloquently and forcefully than I can. I'm an outsider on this issue.)


On Wed, Apr 27, 2022 at 8:13 PM Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com<mailto:nicholas.stephanopoulos at gmail.com>> wrote:
As Rick suggests, I'm indeed wary of (though not categorically opposed to) partisan gerrymandering claims against congressional maps in state court. The concern with these claims is exactly what Rick says: that, if successful, they might inadvertently worsen the partisan bias of the U.S. House as a whole, by invalidating maps whose skews offset that of the chamber in its entirety. Today's New York decision is a case in point: Depending on what remedy is adopted, the U.S. House's existing pro-Republican bias might be substantially exacerbated. A few more points:

  1.  I'm not agnostic between a fair U.S. House map achieved by aggregating fair maps state by state, and a fair U.S. House map achieved by aggregating offsetting gerrymanders in different states. I think the former scenario is preferable because I think there's some value to congressional maps that are fair on an intrastate basis. My fundamental point is that when there's a tradeoff between national fairness and state fairness, national fairness should take priority.
  2.  Rick is clearly right about the practical obstacles to achieving national fairness through state court partisan gerrymandering suits. That's precisely why I worry about them! That said, I could at least imagine a state constitutional provision stipulating that a state's congressional map should be drawn so as to promote national partisan fairness to the extent possible. In fact, I've previously floated<https://urldefense.com/v3/__https:/slate.com/news-and-politics/2019/07/democrats-gerrymandering-scotus-rucho.html__;!!CzAuKJ42GuquVTTmVmPViYEvSg!IEjKb2kBhu3dJBNJq1pCVWwPER3vJtG36YeY---FdEo05SZop0kmHSWWpGdqD9BJg85vgAov6w_jN29Aby5F3STKvGjnGQ$> this idea.
  3.  As Rick notes, the difficulties with state court partisan gerrymandering suits don't apply to two other approaches: constitutional claims in federal court under a standard set by the Supreme Court, and statutory claims in federal court under a standard set by Congress. Under either of these approaches, every congressional map would be subject to the same exact legal rule. The likely result would be the first-best one: a fair U.S. House map achieved by aggregating fair maps state by state. Unfortunately, Rucho put an end to the first possibility for the foreseeable future, and Congress's inaction this year put the second option on ice.
  4.  Despite my wariness of partisan gerrymandering claims against congressional maps in state court, I do see two benefits to them. First, they sometimes push in the right direction. When a state court strikes down a congressional map skewed in the same direction as the U.S. House as a whole (e.g., KS, NC), the result is improved national fairness. Second, looking to the future, it's helpful that both parties are bringing -- and winning -- these suits. This symmetry might convince Republicans, in particular, that they don't need to fear a federal statutory claim because such a claim will effectively rein in blue state abuses. How bad can a federal statutory claim be, after all, if it works much like the theory that Republicans just successfully deployed in New York?

On Wed, Apr 27, 2022 at 3:17 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
The decision of the NY Court of Appeals to strike down the state’s gerrymandered congressional map prompted me to express a thought that’s been on the back of my mind in response to earlier commentary on election twitter about the case.  I put up this post:
Partisan Gerrymandering, from the Perspective of Courts v. Congress as a Whole
April 27, 2022, 12:14 pm<https://urldefense.com/v3/__https:/electionlawblog.org/?p=129034__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvXX3Enp7w$>Richard Pildes<https://urldefense.com/v3/__https:/electionlawblog.org/?author=7__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvVoo_TyNA$> Edit<https://urldefense.com/v3/__https:/electionlawblog.org/wp-admin/post.php?post=129034&action=edit__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvV2FSfB3A$>

With New York’s highest court now striking down the blatant Democratic gerrymander of NY’s congressional districts, I want to address a point that Nick Stephanopolous @ProfNickStephan has made his “hobby horse” — in his words — throughout this litigation. Nick argues that what should matter is not whether any particular state is gerrymandered, but whether the U.S. House as a whole is gerrymandered. >From this perspective, an aggressive Republican gerrymandering in Florida is fine if it is offset by an equally effective Democratic gerrymander of NY. This is a point my colleague, Adam Cox, raised many years ago in academic writing.

Ned Foley and Michael Li have already taken issue with Nick on this claim for various reasons they address. But I want to raise a different issue than they have. If you believe courts should strike down partisan gerrymanders, then courts must inevitably assess congressional maps one by one. Courts could never operate from the perspective Nick endorses. States enact maps at different times, and courts review them at different times. Florida has just recently enacted its congressional map, yet courts in North Carolina and Ohio struck down their state’s congressional maps a while ago. Any one court must act before every state has adopted its congressional plan. The courts cannot wait to see what the overall composition of Congress is likely to be, then decide whether a particular plan is an appropriate gerrymander or an inappropriate one. The NY courts cannot hold that the NY plan might or might not be constitutional, depending on what Florida does. In addition, the court decisions across the country cannot all be made simultaneously, with every court possessing the full knowledge of what every other court is going to do. So this problem recurs at another level: the NY courts cannot hold that the NY plan might or might not be constitutional, until we first know both what the FL legislature is going to enact and what the Florida courts are going to do with that enactment.

If you really believe that “what really matters is the partisan fairness of the whole U.S. House, not any subpart of it” — Nick’s words — than it would seem that this argues for state courts staying out of the business of partisan gerrymandering cases involving congressional maps altogether. The issue might be different for federal courts, since we can imagine federal courts adopting a uniform national standard that would constrain gerrymandering to the same extent in every state.

I’m not clear if Nick means to argue that state courts should indeed stay out of partisan gerrymandering cases involving congressional maps. I would be a bit surprised if that’s his point, given that Nick has been a leading proponent — and litigant — in seeking to have courts strike down partisan gerrymanders. So perhaps Nick means to be making a theoretical point — that partisan gerrymandering for Congress is not a problem if partisan fairness overall comes out in the wash — but one that has no bearing on what state or federal courts ought to do in these cases. But state courts could never operationalize anti-gerrymandering doctrine from the perspective of the overall composition of Congress.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

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