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What the Supreme Court didn’t say…yet

October 3rd, 2017, 8:51pm by Sam Wang

This bingo card turns out to be a fairly apt explanation for what did, and did not, happen during oral arguments today.
First, a bit of color: I sat behind Bill Whitford, and to his right was former California Governor Arnold Schwarznegger. In front of them was Wisconsin Senator Tammy Baldwin. That was cool.

Anyway, note the failure to make bingo above – and what is missing.

Generally, Supreme Court-watchers think that the Court may be ready to vote to restrain at least the Wisconsin gerrymander. Without getting into the details, justices tend to needle the side they end up voting against. Justice Anthony Kennedy asked many probing questions of the state of Wisconsin’s lawyers, but none at all of appellee’s lawyer, Paul M. Smith. Read the transcript to see more.

Kennedy appears to think that partisan gerrymandering is a Constitutional violation. He peppered one of appellant’s attorneys over a hypothetical he came up with: what if the Wisconsin state constitution said that redistricters should use traditional districting standards, but also favor party X? This went on a bit, and Kennedy seemed exasperated at the lack of a clear answer. He even came back to the topic, saying he was not satisfied with the answer thus far. Eventually, it appeared that appellant’s attorney thought it would be a constitutional offense. When asked under what amendment, she said Fourteenth. (Oops, that is not Kennedy’s favorite amendment. His favorite is the First Amendment, which he thinks governs this situation because gerrymandering penalizes expression of political affiliation.)

Kennedy also appears to think that a party’s voters statewide have standing to contest an offense in a specific district, even if they do not live there. A major point is whether gerrymandering of partisan voters in one part of the state is an infringement on voters throughout the state. Paul M. Smith expressed the idea that there was a difference between racial gerrymandering (which affects voters in a district, could be a district-specific offense) and partisan gerrymandering (in which voters choose to associate via partisan route; therefore, voters in one part of the state are affected when other voters are packed into districts). Roberts thought that it gave voters too little credit that they would be pigeonholed simply by virtue of their partisan affiliation. Therefore it has been speculated that Roberts may vote with the state of Wisconsin.

Toward the end, Smith was quite stirring. Roberts asked if a pro-Whitford decision would adversely affect the Court’s reputation by dragging it into politics, and invite a ton of cases. Smith said the Court was already getting a ton of cases, and unless they did something, there would be a “festival” of gerrymandering after 2020. Smith also said that more importantly, think about democracy itself.

So what’s missing? If you inspect the bingo card above, you will see that “bingo” could have been completed if any of the following words had been uttered: “equality of opportunity,” “statistical,” or “t-test.” Interestingly, Justice Sotomayor said that there were five standards for measuring partisan symmetry (some of which you can read about in thisĀ amicus brief). Justices Alito and Roberts appear to dislike social science and math, but their votes seem ungettable at this point. For a resolution, we will have to wait for the decision.

This leaves one loose end: in light of the oral arguments, why did the Court issue a stay in this case? Usually that is bad news for the lower court’s winning side. However, Rick Hasen suggests that it’s par for the course in redistricting cases.

Tags: Redistricting

13 Comments so far ↓

  • Pieter Van Tol

    Those “gobbledygook” quotes are disappointing coming from intelligent people. I will never get the US animus against intellectuals and the current disdain for science. But, as Sam says, they weren’t going to get those particular votes anyway.

    • LondonYoung

      Think of it as the STEM equivalent of saying “legal mumbo jumbo”. There is a disdain for lawyers too.

    • Harry

      I have to agree with Pieter. The dismissive statements about the mathematics involved in what is essentially an argument that can ONLY be proven with statistical analysis are very sad. You would think a top professional in any field would acknowledge their lack of expertise in another field and do their best to understand rather than appearing to say, “This takes too much effort, therefore I will dismiss it out of hand.”

    • LondonYoung

      Respectfully, I disagree that statistical analysis is the only way to resolve this constitutional law question.

    • Sam Wang

      If you inspect the data closely, the question requires more than statistical analysis, for the following reasons:

      1) Statistical tests only identify the most extreme offenses. Lesser offenses require other approaches.

      2) Even with the statistical tests, there are false positives. Examining the legislative intent is important – and may end up being Kennedy’s standard. See this, from the well-regarded Lyle Denniston:

    • LondonYoung

      My old saw: I suspect that one of Utah and Nebraska has been unfairly gerrymandered, but I don’t know which one – statistics won’t help me decide.

      And I think that Denniston is right about the gobbledygook fear. On this blog the readers are likely comfortable debating “does the geographic correlation of partisan preferences render districting statistics sufficiently non-normal that Student’s t-test is no longer applicable?”. The general public isn’t going to like that though.

    • Sam Wang

      Considering Nebraska is nominally nonpartisan, are you pulling our legs? Utah passes tests, as per

      We really tried to avoid too much mathiness in our amicus brief. I actually agree w/the Court that they should not put themselves in a position where experts can snow them.

    • LondonYoung

      I am being 100% sincere.
      In Utah, the liberal large city is cracked, and in Nebraska it is packed.

      So, in Utah, their 4 reps are all representative of the state as a whole, but do not reflect the liberals in Salt Lake. In Nebraska, the three districts are urban, suburban and rural and maximize the chances of a deep red state producing a rep to reflect the liberal views of the city (Warren Buffet :-) ). No math is required to see what is going on. What I can’t decide is whether either of these approaches is objectionable.

      Think of this: let’s say that Nebraska drifted just blue enough that Omaha started electing a dem (and, indeed, Obama got an EV from them in 2008). In response to this, Nebraska redistricts and cracks Omaha to guarantee three GOP reps. I kinda feel that this would be wrong. But I also kinda feel that Utah has a right to have its four reps reflect the overall state – just like with the way almost every state casts their EV’s for one POTUS candidate.

      Indeed, before the civil war, many states (like NJ!) elected a statewide slate of reps all of the same party.

    • Sam Wang

      These offenses occur in states small enough that a frequentist statistical standard will not work – it can’t reach significance. It is hard to see how the Supreme Court would regulate them, though maybe I am wrong about the likely direction of the Court. In Utah, this offense makes the difference between a 4-0 delegation and a 3-1 delegation. Seems like it is mainly voters within the state would be most interested in reform.

      With this in mind, the state-level reform route looks attractive. Utah and Nebraska both allow voter-driven initiatives and referend.

    • LondonYoung

      If we leave it up to voters statewide, then the Utah model should usually win.
      This is related to the reason the VRA stripped districting power from southern states and turned it over to the federal courts.
      Nothing in the constitution says states should be allowed to pick their own districting plans.

    • LondonYoung

      In fact, it should be easy to write a computer program to district the whole country according to a few input criteria (like favoring county and city borders, etc… ). Then it can be presented to the congress for approval. Maybe J. Kennedy would prefer demanding a single nationwide algorithm to having the federal courts deal with dozens of individual state plans every census …
      This would mean we have only one court case over the algorithm every ten years …

  • 538 Refugee

    Not 100% related but has to do with partisan divide. So much for thinking primary party hardliners are responsible for picking the candidate?

    Or maybe those party hardliners are more apt to wear their beliefs on their sleeves and answer polls? ;)

  • Matthew McIrvin

    The rate with which these cases tend to proceed raises the possibility that in the future, states could simply enact blatantly illegal district boundaries and rely on the case not being resolved until after the next election, then repeat.

    Of course, piss off a judge like that too many times and the injunctions come.

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