Princeton Election Consortium

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Politics & Polls: What I saw in the Supreme Court

October 12th, 2017, 5:16pm by Sam Wang


Julian Zelizer and I talk about partisan gerrymandering, what I saw when I attended oral argument in Gill v. Whitford, and what it means for reform efforts nationwide. All in the new Politics & Polls.

Tags: Redistricting

12 Comments so far ↓

  • ColinMcAuliffe

    Listening to Gorsuch was nauseating, it’s amazing that anyone in the courtroom kept their lunch down

  • Raven Onthill

    Shorter Chief Justice Roberts: “Math is hard?”

    Maybe so, but if so, I can see no reason not to abandon counting ballots entirely, and hand the selection of officials to strange women handing out swords or other methods of divination.

    • LondonYoung

      Well, which do you have less faith in:
      (a) the many election predictors who assigned 90%+ probability to democratic victory in each of the last four presidential elections
      - or -
      (b) the counting of ballots which gave the republicans victory half the time?

      Both (a) and (b) are error prone.

      Math is hard.

    • Matthew McIrvin

      What strikes me is that the people attacking democracy through creative districting are, themselves, using increasingly sophisticated math to do it, but the people who are supposed to be defending it won’t use that technology. It’s a kind of unilateral disarmament.

    • LondonYoung

      well, legislatures and executives as just as responsible for defending democracy as the courts are …

  • hk

    Off topic but is there any reliable polling on the Alabama special election for US Senate?

  • LondonYoung

    I gather (from wikipedia) that once the district court decided against the state and the state appealed that the supreme court was obligated to take the case. But it seems weird to me that a lower level court would be allowed to set SCOTUS’s agenda in this way. Was their some sort of coordination or signalling to the lower court to advance this particular case as a test case?

    • Sam Wang

      As far as I am aware, that kind of signaling does not occur. However, it does puzzle me that more cases do not clog up SCOTUS’s docket, considering the express route that exists from three-judge courts to them.

      Related to this, a pro-Whitford decision may make legislatures less likely to pass extreme partisan gerrymanders if they know that a lawsuit will come next. Legislatures are known to be risk-averse when it comes to court interference in redistricting plans.

    • Pechmerle

      Sam is correct that there is no “signaling” from the Supreme Court in particular cases that they would like the case to reach them for an authoritative review. To the extent that there is some manipulation, it is on the part of voting rights activists (conservative as well as liberal) in choosing where to bring cases — looking for jurisdictions where they are more likely to get a favorable result, and then hope they can get the Supreme Court to affirm, creating a firm, nationwide rule. The relevant statute mandates that the Supreme Court take the case when there is a decision of a three-judge district court. There is more than one thing the Supreme Court can do with it, but they do not have the discretion to do nothing, as in denial of certiorari cases.

      There actually are far fewer cases decided by three-judge district courts than there were in, say, the days of the Warren Supreme Court. Congress determines by statute which cases get three-judge courts, and they have significantly narrowed that down to mostly voting rights and campaign finance cases. We may view this generally as a category of cases that affect the operation of democracy itself, and not disputes of lesser import.

      In these three-judge cases, the case is first assigned to a single district judge. By statute, he determines whether the case actually fits into the jurisdictional requirements, i.e. is there a substantial allegation of violation of a federal voting rights act, or a legitimate assertion that a redistricting of state congressional districts or state legislative districts violates the Constitution. This initial screening decision is subject to review on appeal and there are cases where the circuit court has determined that dismissal for lack of three-judge jurisdiction was incorrect and the case is sent back with instructions to convene a three-judge panel of the district court.

      As so many have noted, Gill vs. Whitford was pretty much a case crying out for liberal activists to bring the case, given how ferociously gerrymandered the Wisconsin legislature is.

    • LondonYoung

      Much thanks – I hadn’t realized congress had this power to determine the path of cases, but I guess is follows from their constitutional authority to authorize lower courts.

    • Pechmerle

      “follows from their constitutional authority to authorize lower courts” — exactly right

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