Subject: Re: Question Raised by Pildes Brief
From: tom ferrone
Date: 1/10/2006, 7:37 PM
To: Marty Lederman
CC: election-law@majordomo.lls.edu

I'm a 2L at Michigan Law School, and I'm working on a note that uses the same framework as the Pildes amici brief to develop a standard for partisan gerrymandering.  (Jamal Greene, who is clerking for Justice Stevens next term, wrote similarly in "Judging Partisan Gerrymanders Under the Elections Clause," 114 Yale L.J. 1021 (Mar. 2005)).

Two ideas, I think, might be worth pointing out.

First, states haven't been gerrymandering *congressional* districts for very long.  I'm still doing the research, but since Wesberry was decided in the mid-60s, states have had only four chances (in the 70s, 80s, 90s, and 00s) to gerrymander congressional districts (and, I know that a not insubstantial number of the districting plans were finally developed by courts and not legislatures).  So while state legislatures may have been gerrymandering since "the dawn of time", they've been gerrymandering state districts, not congressional districts.  This seems like an essential point under the federalism framework in Gralike, and would result in allowing the continued political gerrymandering of state legislatures while prohibiting the political gerrymandering of congressional districts (I think).  (And if states did gerrymander for partisan purposes before Wesberry, there's an argument that the Wesberry line of cases changed the Article I relationship between the states and the federal government with respect to districting.  See Branch v. Smith, 538 U.S. 254, 307 (declaring that the Wesberry cases "ushered in a new era").

Second, the ballot provision in Gralike was held unconstitutional because it was not a procedure.  531 U.S. 510, 523-24.  A district map, on the other hand, seems to fall clearly within the bounds of the "Manner" provision of the Elections Clause.  While the Pildes amici brief argues that "surely the Elections Clause prohibits the actual, transparent, and even brazen self-interested manipulation" of congressional districts, there is no denying that the manipulation was done pursuant to the single-districting provisions of 2 U.S.C. 2c ("In each State ... there shall be established by law a number of districts ... no district to elect more than one Representative").  Do states violate the federalism framework developed by Term Limits when they use their procedural authority either for the purpose or with the effect of reaching substantive results?  Any procedure that vests discretion in the body charged with implementation necessarily allows that body some authority to apply procedure in a way that best fits its substantive goals.  For example, the Elections Clause, at its most basic level, gives states the authority to provide the “times and places” of congressional elections, Smiley v. Holm, 285 U.S. 355, 366 (1932), yet states have made use of time and place procedures to influence the substantive outcome of elections.  After all, the very purpose of §5 of the Voting Rights Act was to prevent certain states from modifying the time and place of their elections to substantively influence congressional outcomes (for instance, by closing the polls early so fewer blacks would vote).

My general feeling on this is that States then must necessarily have some authority to use the procedures granted to them by the Elections Clause in order to reach a substantive outcome -- to keep counties and cities within single districts, or to keep a particular industry in a single district.  But it seems a state transgresses its authority when it uses procedure "as a source of power to dictate electoral outcomes [or] to favor or disfavor a class of candidates."  Term Limits, 514 U.S. 779, 833-34 (1995).  As an example, under the Term Limits federalism framework, incumbency protection by state legislatures of congressional representatives seems like one of the least constitutional applications of the procedural powers granted to states by the Elections Clause.  But developing a line between permissible and impermissible uses seems like the challenge (as always) (for instance, what if keeping a city within a single district would necessarily result in a Democratic district?).

I'd be very interested to know what others think.

-Tom Ferrone

Marty Lederman wrote:
Rick's fascinating brief (written with Sam Issacharoff and Burt Neuborne) raises a fundamental, or baseline question that has perplexed me since my work on Cook v. Gralike.  It's a question, I suppose, that only someone who's an election-law novice (such as yours truly) might ask -- namely, what gives states any authority to apply outcome-specific considerations in drawing districts?  The state's power to redistrict derives, doesn't it, from the Elections Clause -- which in theory gives the state only a procedural, or house-keeping function.  Why isn't a state acting extra-constitutionally whenever it uses considerations such as partisanship, incumbency protection, or party "balance" in its consideration of how to draw districts?  Why isn't that just as much of a violation of the Elections Clause as when the state structures the ballot itself with such considerations in mind (e.g., preferred ballot ordering, or "scarlet letter" labeling)?
 
I recognize that this theory would invalidate virtually all redistricting that's been undertaken over the past few decades (if not longer).  (Rick's brief only argues for a rule against mid-decade redistricting, but I'm not sure why its logic wouldn't in effect require that all redistricting be performed by courts, computers or "experts," rather than partisan state legislatures.)  So no doubt it's too extreme to be taken seriously.  But on what basis?  Has the Court ever explained what gives states the authority to gerrymander?
 
I realize, by the way, that this is similar to my question of a couple of months ago about why all state partisan gerrymandering doesn't violate the First Amendment.  Perhaps the similarity makes some sense, because as Cook and Rick's brief demonstrate, the First Amendment and Elections Clause considerations are in some respect conterminous or analogous here.
 
Is there any justification here other than "It's been occurring since the dawn of time"?
 
 
----- Original Message -----
From: "Rick Hasen" <Rick.Hasen@lls.edu>
To: <election-law@majordomo.lls.edu>
Sent: Tuesday, January 10, 2006 4:00 PM
Subject: message from Rick Pildes

> Rick Pildes writes:
>
>
>  We did not cite any unpublished academic work, including the
> forthcoming article you mention.  As you must know, that particular
> article has been powerfully and, I believe, devastatingly criticized by
> another forthcoming article by Michael McDonald * in the very same issue
> of that forthcoming journal.  As McDonald points out, the article you
> mention bizarrely used the 1988 Presidential election results to assess
> the competitiveness of the 1990 congressional districts and then to
> compare the competitiveness of the post-redistricting 1992 districts,
> the article used the 1992 Presidential election results * even though
> that was a three-way contest in which Ross Perot received 18.9% of the
> vote.  As McDonald's article shows, that unhelpful baseline from the
> unusual 1992 election completely distorts all of the results in the
> paper you note.  When McDonald revisits the data using "more valid
> measures of district competitiveness," as he puts it, he finds no
> question that "redistricting is shown to reduce the number of
> competitive congressional districts, contrary to Abramowitz et. al."
>
> We would like to have cited this unpublished work, but I do not invite
> the Court to rely on unpublished work, nor do I want to cite it before
> publication.  No matter how late in the production process an article
> is, things can still change before publication.  Indeed, I would like
> also to have cited additional unpublished work, including additional
> work by McDonald, that further confirms the obvious link between safe
> districts and non-competitiveness.   As McDonald concludes in "Drawing
> the Line on District Competition," after data analysis:  "Those engaged
> in redistricting seem to have perfected their game, resulting in fewer
> competitive districts in the 1991 and 2001 redistricting cycles."   But
> I also did not cite this work because it too was not in publication when
> production of the brief was completed.  The unpublished paper in your
> email is, as far as I am aware, considered quite an outlier among the
> studies that have looked at the 2000 elections.  In advance of
> publication, it has already been convincingly shown to be mistaken.
>
> Please note that our brief never says that safe districting is the only
> cause of the absence of competitive elections.  We note that it is a
> contributing cause.  I believe the social-science evidence
> overwhelmingly confirms this, even including unpublished work,
> especially for the 2000s, which is the focus of the case.
>
> Rick Pildes
>
> Richard Pildes
> Sudler Family Professor of Constitutional Law
> Co-Director, NYU Center on Law and Security
> NYU School of Law
> 40 Washington Sq. So.  NYC, NY 10012
> phone:  212 998-6377
> fax:  212 995-3662
>
>>>> Rick Hasen <Rick.Hasen@lls.edu> 1/10/2006 2:50 PM >>>
> From: "Kimball, David C." <kimballd@msx.umsl.edu>
> To: <election-law_gl@majordomo.lls.edu>
> X-OriginalArrivalTime: 10 Jan 2006 19:11:19.0687 (UTC)
> FILETIME=[A354B970:01C61619]
>
>
>
> The post about the Texas brief on political competition reminded me to
> add something.  There are a number of studies which find that
> redistricting is not to blame for the decline in competitive contests or
> for the incumbency advantage in American congressional elections,
> including this article from the January 2006 issue of Journal of
> Politics by Alan Abramowitz and his colleagues
> (http://journalofpolitics.org/files/68_1/Incumbency.pdf).  Not everyone
> agrees with this finding, but I didn't see any of the studies which
> claim to exonerate redistricting cited in the Pildes, Issacharoff, and
> Neuborne brief.
>
> - David Kimball
>
> =20
>
> David C. Kimball
>
> Associate Professor, Department of Political Science
>
> University of Missouri-St. Louis
>
> One University Blvd., 347 SSB
>
> St. Louis, MO 63121-4400
>
> phone: 314-516-6050
>
> web page: http://www.umsl.edu/~kimballd
>
> =20
>
>
>
>
>
>
>
>
>

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