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Another SCOTUS partisan gerrymandering case in 2017-2018 goes forward!

December 8th, 2017, 11:12pm by Sam Wang


This is quite novel. We are still waiting for the decision in Gill v. Whitford, this year’s big partisan-gerrymandering case before the Supreme Court. However, it turns out it’s just the first case. Now there’s a second one: Benisek v. Lamone.

There are other cases pending in lower courts. Why would SCOTUS take any of them? The first obvious point is that whichever way things go, Justice Anthony Kennedy appears to be intent on laying down a doctrine that spans multiple cases. He may retire this year, and maybe he’s a man in a hurry.

I can think of reasons why the Supreme Court would want to take on the Maryland case sooner (rather than wait until it finishes with Whitford). First, the other cases in North Carolina and Pennsylvania have a certain family resemblance to Gill v. Whitford: they have delegations large enough to have multi-member delegations on both sides – and both are Republican gerrymanders. In a sense, they are redundant. For these cases, it would likely be sufficient to wait for whatever new law is made in Whitford.

Maryland, on the other hand, has novel features. For the politically-minded, it was committed by Democrats. A second ruling, coming soon after Whitford, would nail partisan gerrymandering as a bipartisan offense.

However, the Court may be more interested in a technical issue: there’s only one GOP seat remaining in Maryland. It was gerrymandered by spreading Democrats around as evenly as possible in the other 7 districts. I have offered a test that shows this, but it is distinct from the ones that are offered in a closely-divided state like Wisconsin.

Another way to establish that Maryland was gerrymandered is to look closely at how the districts were drawn. There are few enough districts (only eight) that one could reasonably hope to examine a single district. The focus of the plaintiffs’ case is the 6th, where Democrats were poached from the DC burbs to make it blue. This way of thinking about gerrymandering is not in Whitford.

Finally, there is a *great* human-interest angle. This suit was originally brought by Steve Shapiro, who lacked a law degree at the time. SCOTUS ruled that the lower court had to take him seriously. Now that’s impressive.

Tags: House · Redistricting

11 Comments so far ↓

  • LondonYoung

    I went straight to this blog when I saw SCOTUS move on this case. Kennedy has something in mind indeed. “An old man in a hurry” might be a bit harsh here, but we have seen many quips in the court’s decisions that redistricting cases keep coming back and back again …

  • LondonYoung

    But Maryland brings up a question for me about mathematical tests. Epic rap battles of history: Utah vs. Maryland. Imagine two states, each with one liberal city. In one case, the state is overall PVI R+ and the other state it is D+. The legislatures of both states have a policy of wanting the congressional delegation to look like the state as a whole. So, in both cases the liberal city is carved up like the center of a pie. In the R+ state you end up with all R’s, in the D+ state you end up with all D’s. Have either, both or neither been gerrymandered?

    • Sam Wang

      There is an aphorism in political science that all districting is gerrymandering. The way I would put it is that districting inherently carries priorities that are expressed in the procedure. Since the US does not enforce proportional representation by other means (as, for instance, Germany does), there’s always a danger of missing proportionality.

      Broadly speaking, about 40-50% of the seats in a multi-district state are susceptible to capture by either party. For some reason, I’ve never seen that idea expressed – it needs to be, because I think it clarifies a lot.

      It is possible to establish procedures that avoid extreme outcomes at either end. Based on longtime patterns in the UK and US, I think it would be good to get close to a seats=f(votes) function that is a cumulative gaussian, where the gaussian has an SD of about 16%. For example, if a state is split 50-50, then it would be fair to aim to have two-thirds of districts be 66%-34% or closer. Population clustering makes that a little harder, but this difficulty can probably be overcome by a committed nonpartisan commission.

    • LondonYoung

      In other words, all districting is gerrymandering, but one may choose to say that proportional representation is a fundamental good? Maybe – but the mathematical tools you put forward don’t seem super helpful here in the epic rap battle.

      I guess the thing I can’t get my head around is what we should do when two geographies, bound together within a political border, don’t agree on some fundamental policy. This seems to be a good source for civil wars and nasty polarization.

    • Sam Wang

      In my view, redistricting is a technical subject, stuck by historical circumstance in a nontechnical context. The challenge is how to extract it peaceably. In a federal system beset by gridlock, that’s tough.

      Actually, the t-test works fairly well in most cases, and the rest can be patched up as needed. SCOTUS may be about to execute such a patch.

    • LondonYoung

      Well, J. Kennedy is not beset by gridlock ;-)
      I think he does want a test and sees at least one idea he likes.
      Efficiency gap seems dangerously close to a form of proportional, but your tests lean towards detecting states that are “outside the norm”. When I see talk of “traditional principles of redistricting” I can see the court simply saying “you can’t stand out too much from your peers” and using your tests to draw a line. Like with civil rights, one might draw some kind of historical baseline for comparison.

  • Pechmerle

    There is a persistent technical misunderstanding here. If you look at the Supreme Court’s Dec. 8 order, it is not a grant of certiorari – a discretionary act. Instead, it is a procedural order in a case they Must take, because it (a) comes from a three-judge district court panel and (b) involves redistricting. This is the applicable statute:

    “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” 28 USC 1253

    This does not mean that they must set it for oral argument, or that in the end they must resolve it on the merits in this proceeding. But they must do Something with it, not turn it away in a pure act of discretion as they can in matters that arrive on application for a writ of certiorari. The Dec. 8 order recognizes all this, by stating that the Supreme Court will deal with whether its jurisdiction in this particular case was ripe at the same time that it considers the matter on the merits. The order does not appear in the list of cases in which certiorari was granted on Dec. 8 – the cases they Chose to take.

    This case got to the Supremes because under the procedural statutes, when others have not yet, because the three-jduge lower court denied an injunction. That order on the injunction entitled the plaintiff to appeal directly to the Supreme Court bypassing the Fourth Circuit.

    This is, in other words, all very nice for we who want to see the Supreme Court speaking to the critical topic of gerrymandering. But it is not the Court reaching out for a case in which to do so. The case arrived on its own right, not Supreme Court discretion to take it or not take it.

    • Sam Wang

      I am interested in your technical point, and I have tweaked my post to reflect it. To repeat your point for others: when a voting-rights case goes through the three-judge-panel route, it has to be passed up the chain. In fact, Benisek itself comes from a decision elaborating on that principle, which was Shapiro v. McManus (it’s renamed now that Shapiro is an attorney and not a party to the case).

      However, I believe you are making it a little harder for the nonlawyers to see the key conceptual point. Follow the links – for example, Rick Hasen is surprised at this turn of events. Also see Lyle Denniston’s take.

      Basically, even though there may be a guaranteed route from a three-judge court to SCOTUS, it would have been normal for that route to be triggered after Whitford was decided. The acceleration of Benisek strongly suggests that something is afoot.

    • LondonYoung

      Quick question then; looking here:
      https://www.brennancenter.org/legal-work/benisek-v-lamone-amicus-brief
      … it seems the lower court said “wait for Gil vs Whitford to be decided” and Scotus denied a request for an expedited appeal.
      But then more motions followed and Scotus said “ok let’s hear it”.
      Did Scotus do nothing voluntary here?

    • Sam Wang

      From one of my correspondents: “The first commenter’s point about mandatory jurisdiction [does not exactly apply], because Maryland hasn’t had a trial yet – I believe this is an appeal of the stay pending Whitford? So it wouldn’t have been a big deal to summarily affirm, as no meaningful precedent would be set.”

    • Pechmerle

      Some further thoughts:

      The technicalities do get somewhat complex here. SCOTUSBlog has a very nice plain English summary of SCOTUS procedures in regular, writ of certiorari cases. Unfortunately, it does not provide a similar plain language description of the procedures in (the much rarer) direct appeal cases.

      First, Benisek is not now about the lower court’s indication that it wanted to wait to see what guidance a SCOTUS opinion in Gill may provide.
      The immediate issue — among others — is the lower court panel’s refusal to enjoin Maryland from proceeding with the 2018 election using the (gerryamandered) boundaries of the 6th District.

      Second, the grant or denial of an injunction in a three-judge lower court cases is itself immediately appealable to SCOTUS . The appealing parties (appellants) did not have to wait until a full trial occurred in the lower court. That is per the statute quoted in my previous post. The appellants in Benisek naturally availed themselves of that right, rather than take the passive course of waiting on Gill as the lower court wanted to do.

      Third, “a simple affirmance” of the lower court’s interim order would not have been a satisfactory solution. That would have let the (bad) district boundaries established in 2011 stand for 2018 and the Democrat would have been easily reelected in this lopsided district. That is not a trivial, merely procedural, consequence. In such circumstances, there would have to be SCOTUS briefing and an opinion on this issue. When injunctions have such impact, appellate opinions on them can be of significant importance.

      Fourth, there is not (I think) any intrinsic rule in SCOTUS procedure that Benisek would have waited until after Gill was decided. Benisek has arrived at SCOTUS because the appellants have exercised their rights. The appellants are aware that they are informally behind Gill in the queue, and filed a motion for expedited consideration. In that motion, they asked that Benisek be put on the same time track as Gill and considered together with Gill. SCOTUS has discretion to grant or deny such expedited consideration. On Sept. 13 that motion was denied.

      Fifth, there is what SCOTUS did and did not do in its Dec 8 order. What they did do is put the regular scheduling process in motion for Benisek. They have already denied the Benisek appellants’ motion for expedited consideration. But now they have not put it on hold pending the outcome in Gill. They did not comment on Dec. 8 on whether it would be appropriate to consider Beniske and Gill together. Benisek will apparently not come up for oral argument (since not expedited), until next March. After that the Court can issue opinions in Gill and Benisek in any order they want from then until June (or even issue one in Gill before March, and declare it dispositive of Benisek if it turns out they see the issues that way). So, at this stage they have pretty much kept their powder dry. But they did do a double negative thing — they did not hold Benisek formally till after Gill.

      This discussion (and the links to expert commentary) have persuaded me that there is something interesting going on behind the curtain on whether and how to relate consideration and decision of Gill and Benisek. Nobody knows what.

      I note that Hasen says he was surprised, but has no idea why they did it, in response to journalists’ questions. Denniston notes that they have all possible timing options preserved, in when they issue decisions in Gill in relation to Benisek. They have kept their powder dry, but it does seem that they thought they have some good reason for doing so.

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