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Justice Alito draws the line

February 5th, 2018, 11:11pm by Sam Wang

gavelToday, U.S. Supreme Court Justice Samuel Alito denied Republican legislators’ request for a stay of the Pennsylvania Supreme Court’s redistricting decision. That decision overturned the state’s partisan gerrymander, and remains in place. Therefore the drawing of new maps will go forward.

Here’s a quick rundown of what the decision does – and doesn’t – mean.

1. Justice Alito hasn’t had a change of heart. As election law nerds are all aware, Justice Alito is highly disinclined to find a right to fair districting in the U.S. Constitution. Some of that is logically driven: most proposed standards have a certain intellectual flabbiness to them. In addition, he appears to see it as legitimate for a legislature to maintain its own power through creative redistricting. So why did he deny the stay?

Basically, logic dictated that he do so. The Pennsylvania court’s decision was grounded in the Pennsylvania Constitution, which has federal constitution-like guarantees of freedom of speech (U.S. const. Am. 1) and equal protection (U.S. const. Am. 14). Unless the state court’s ruling explicitly violated the federal constitution, there was no logical route to overturning it. And there are very few votes on the Supreme Court for the idea that the U.S. constitution guarantees the right to gerrymander. Certainly not five votes, which would have been required for a stay.

2. Democrats are likely to gain at least four seats in Pennsylvania this November. A partisan gerrymander typically steals 20-25% of the seats compared with neutral districting. Republican legislators managed to waste their own time with their request for a stay, so they may not be able to draft a plan in time. That would suggest the Pennsylvania Supreme Court’s special master, Stanford election law professor Nathaniel Persily, will end up drawing the lines. A neutral plan will move at least 3-4 districts toward the Democrats – and in what may well be a wave year, maybe even more will flip.

3. Wisconsin, Maryland, and North Carolina are still up in the air. Because the federal cases turn on different constitutional questions, still unresolved are Wisconsin (Gill v. Whitford), Maryland (Benisek v. Lamone), and North Carolina (Common Cause v. Rucho). Decisions are highly unlikely to come any earlier than May. The reason is that oral arguments in Benisek are set for March. Because the Benisek parties have already filed briefs, it would be considered dirty pool to stick them with a decision in Gill before then. So we wait.

The most likely outcome at this point is that two partisan gerrymanders will be overturned, a Republican one in Wisconsin and a Democratic one in Maryland. Because nearly all partisan gerrymanders in the U.S. are committed by Republicans, leveling of the playing field produces a net gain for Democrats relative to the status quo. However, many of these maps are unlikely to be redrawn until after the November election. Voters will get justice…but not right away.

Tags: 2018 Election · Redistricting

13 Comments so far ↓

  • Pechmerle

    1. Undeterred: A member of the Penn. General Assembly is urging Republican colleagues to co-sponsor articles of impeachment against five of the seven justices on the Penn. S. Ct.!

    2. Don’t be surprised if the Penn. Legislature does submit a map on time. They have been said to be working on it even as they have sought to use every available lever they have to avoid submitting it (appl. for stay to Penn. S. Ct.; appl. for stay to U.S. S. Ct.; motion to disqualify two of the Penn. S. Ct. justices for bias; and now movement toward possible impeachment of all five of the Dem. justices on the Penn. S. Ct.).

    • Sam Wang

      1. That will be an interesting test of respect for our democracy’s institutions. How many of them will sign on to that?

      2. Good point.

    • LondonYoung

      On point 1, the GOP does control 2/3 of the PA senate, so it is not an idle threat.

      However, I think this SCOTUS move means Gil will not come back 5-4, but rather 6-3 with Roberts joining the majority. There are going to be new rules for districting and I am thinking he wants to play a role in formulating them since he seems to have an opinion on methodologies.

  • Elise

    2. Yes, but it still seems more likely that the Court-drawn map is the one in place in November since the Democratic governor would have to sign it into law in order to avoid that conclusion. For the governor not to veto, he’d have to believe the Republican-drawn map is more fair than the one drawn by the Court’s expert…which seems unlikely at best.

    • Pechmerle

      The Legislature has an incentive to submit a plan that the Governor would sign: to try to protect incumbents, of both parties, while still meeting the Penn. S. Ct.’s admonitions re compactness, not splitting cities & counties, etc. Will they do that? Will he sign it? Close call.

      On a related front, both Justices Wecht & Donohue have declined to recuse themselves. And Wecht’s 20 page opinion makes clear that under Penn. law the judge’s determination on recusal is final.

      On yet another front, today the U.S. S. Ct. declined to expedite the North Carolina case, which apparently means it likely won’t be heard before the fall. And therefore North Carolina will be subject to yet another election using this massively gerrymandered map. Ginsburg & Sotomayer dissented, indicating that they would have granted the motion to expedite.

    • Pechmerle

      The leaders of the Penn. House of Delegates and Senate have sent their proposed map to the Governor. They did so without a legislative vote on the map because the session of the House of Delegates on Wednesday was cancelled because of the severe weather.

      The Governor has said he will review this submission, despite its not having been passed by both houses of the legislature.

      I note – re my prior comment that they might try to meet the Penn. S. Ct.’s criteria while protecting incumbents – that the legislature’s leaders say their map keeps 68.8% of voters in their current districts “to avoid confusion among the general public.”

  • Phoenix Woman

    By the way, both the Missouri special election and then the Minnesota caucuses last night point to the enthusiasm level being key.

  • ArcticStones

    “However, many of these maps are unlikely to be redrawn until after the November election. Voters will get justice…but not right away.”

    I think it is profoundly disappointing that the U.S. Supreme Court is not treating the other gerrymandering cases with the urgency they they deserve and clearly demand.

    In fact, this is nothing short of outrageous.

    This lack of urgency is itself a loud statement from the Supreme Court – and, imho, one that reflects the Court’s worrisome partisan tilt.

  • Pechmerle

    The Penn. S. Ct.has today filed its reasoned opinion supporting its Jan. 22 order requiring redrawing the Penn. Congressional maps.
    For those interested, here it is the opinion:
    However – it is 139 pp. long, without exhibits. And in addition to this there are dissenting opinions by some of the justices.

    • LondonYoung

      139 pages, but it invokes the name of Benjamin Franklin!

    • ArcticStones

      @London Young: It invokes the $100-bill?

    • Pechmerle

      Over at Election Law Blog, there is a very thoughtful post on some weak links in the Penn. S.Ct.’s opinion between the evidence in the trial court, the evil of extreme gerryandering that the Court seeks to remedy, and the districting criteria that they ordered the legislature to follow.

    • LondonYoung

      Good post.
      Indeed, the PA court is not focused at all on what our bloghost, Prof. Wang, or even J. Kennedy are thinking about. As Dr. Wang has warned many times, it is not that hard to gerrymander while obeying the rules demanded by the PA court.

      However, the voters of PA will get relief because the PA governor’s mansion is now in dem hands. A cynic would point out that the court objected to the 2011 districts only years later after the dems finally won the executive, and then it did so voting 5 dems in favor vs. the 2 GOP dissenting.

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