Supreme Court punts on partisan gerrymandering

[Antonio the Sixth]

This is like fighting a forest fire with a water gun. Until the SCOTUS actually starts systematically tossing out all gerrymandered maps, the way the PA court did, the problem will keep getting worse until it's completely out of control.

[Florida Man for Crime]

This is like fighting a forest fire with a water gun. Until the SCOTUS actually starts systematically tossing out all gerrymandered maps, the way the PA court did, the problem will keep getting worse until it's completely out of control.

Yes. As anyone who has played around with Dave's Redistricting App knows, gerrymandering is not really a matter of individual districts. A gerrymander is very much a wholistic statewide monster. A 'good' (effective) gerrymander is a puzzle where all the pieces fit together just right. A district drawn one way in one area has ripple effects and can easily contribute to radically changing a district entirely on the other side of the state.

[Sestak]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

But they would have had to set some standard, and the plaintiffs in Whitford wanted that standard to be the efficiency gap.

[muon2]

I'm glad they didn't buy the efficiency gap metric as both jimrtex and I showed its defects a year ago. However, I'm still optimistic for the underlying merits of the case in terms of partisan gerrymandering. In particular, I think that SCOTUS provides a direction forward when the case goes back to district court.

The big defect that SCOTUS found was that the plaintiffs dealt in statistical averages that affected the political outcomes of one party. That's a political harm, not a legal harm in their view. They don't want testimony from a Dem-supporting professor who lives in Madison who admits that he will be able to elect a Dem no matter how his district is drawn. They do want to hear from a person who lives in a reasonably sized swing county, but never has an opportunity to elect candidates except from one party based on the specific lines. Showing that a neutral plan would result in that voter having opportunities to elect candidates from either party probably would hold more sway with SCOTUS.

If I were advising the plaintiffs, I would suggest that they move away from looking solely at the skew of the statewide plan and look equally at the polarization created by the gerrymandering. This is just based on a quick read through the opinion so far. I'll probably have more to say as I reread it in depth.

[I spent the winter writing songs about getting better]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

From the Court's perspective it does. Had they just said "this map is bad" and tossed it, then the precedent would be its an illegal gerrymander only if SCOTUS says so and their docket would overflow with cases approving maps or not. There needs to be am objective standard in legal precedent and there are many that could be used against the Wisconsin map.

[Antonio the Sixth]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

From the Court's perspective it does. Had they just said "this map is bad" and tossed it, then the precedent would be its an illegal gerrymander only if SCOTUS says so and their docket would overflow with cases approving maps or not. There needs to be am objective standard in legal precedent and there are many that could be used against the Wisconsin map.

I don't recall there being a specific mathematical standard in the Pennsylvania case. It was just obviously a partisan gerrymander and the court said so.

[Mr. Reactionary]

They ruled on the Maryland case too:

https://twitter.com/SCOTUSblog/status/1008717468704133120

What does it mean? I know we got a couple of lawyers around here.

Sounds like in Maryland the map defenders asked for an injunction either to prevent the case itself from going forward until another case was heard, or it asked for an injunction to stop the changes to the map until the appeals were final (Not sure of the case history). The Maryland Court determined that the injunction was not warranted, and the map defenders challenged the Maryland Court's determination that the injunction was not warranted. Upon review the Supreme Court determined that the map defenders did not present sufficient evidence demonstrating that the Maryland Court was wrong to deny the injunction. So now, whatever the map defenders were attempting to enjoin is permitted to continue, whether it be the lawsuit or the changes to map.

[I spent the winter writing songs about getting better]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

From the Court's perspective it does. Had they just said "this map is bad" and tossed it, then the precedent would be its an illegal gerrymander only if SCOTUS says so and their docket would overflow with cases approving maps or not. There needs to be am objective standard in legal precedent and there are many that could be used against the Wisconsin map.

I don't recall there being a specific mathematical standard in the Pennsylvania case. It was just obviously a partisan gerrymander and the court said so.

Yes but that was the Pennsylvania Supreme Court. They only deal with Pennsylvania. SCOTUS doesn't want to have to approve every map.

Also not fond of Kennedy but don't see how you can blame him for a unanimous decision.

[Senator Spark]

I don't think SCOTUS will be able to address this one since gerrymandering is a states' issue. A lot of constitutional issues would be in play such as the 10th and 14th Amendments of the U.S. Constitution. But the court often defers and avoids the issue at hand to let the states resolve it.

[Antonio the Sixth]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

From the Court's perspective it does. Had they just said "this map is bad" and tossed it, then the precedent would be its an illegal gerrymander only if SCOTUS says so and their docket would overflow with cases approving maps or not. There needs to be am objective standard in legal precedent and there are many that could be used against the Wisconsin map.

I don't recall there being a specific mathematical standard in the Pennsylvania case. It was just obviously a partisan gerrymander and the court said so.

Yes but that was the Pennsylvania Supreme Court. They only deal with Pennsylvania. SCOTUS doesn't want to have to approve every map.

Also not fond of Kennedy but don't see how you can blame him for a unanimous decision.

I mean I don't just blame Kennedy, I blame every single Justice who signed on to this. To hell with all of them. Any judge who doesn't do every single thing in their power to stop gerrymandering is failing at their duty and is unworthy of the office.

[ilikeverin]

I'm glad they didn't buy the efficiency gap metric as both jimrtex and I showed its defects a year ago. However, I'm still optimistic for the underlying merits of the case in terms of partisan gerrymandering. In particular, I think that SCOTUS provides a direction forward when the case goes back to district court.

The big defect that SCOTUS found was that the plaintiffs dealt in statistical averages that affected the political outcomes of one party. That's a political harm, not a legal harm in their view. They don't want testimony from a Dem-supporting professor who lives in Madison who admits that he will be able to elect a Dem no matter how his district is drawn. They do want to hear from a person who lives in a reasonably sized swing county, but never has an opportunity to elect candidates except from one party based on the specific lines. Showing that a neutral plan would result in that voter having opportunities to elect candidates from either party probably would hold more sway with SCOTUS.

If I were advising the plaintiffs, I would suggest that they move away from looking solely at the skew of the statewide plan and look equally at the polarization created by the gerrymandering. This is just based on a quick read through the opinion so far. I'll probably have more to say as I reread it in depth.

Yeah.  The key paragraph from the ruling, I think:

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I mean, I wish they followed a similar logic in Citizens United, but there's something really not bad about this concept.  The plaintiffs need to show that they as individuals have been harmed (or take the First Amendment route, as per Kagan's opinion - obviously catering to Kennedy).

[Torie]

I have this suspicion that it is deemed such a tar-baby issue by some on SCOTUS, that they prefer to stall in hopes that the public square mitigates the issue to the point where SCOTUS feels more comfortable to just do nothing. This standing stuff is a moving target for SCOTUS, which it uses to give itself flexibility in what it wants to avoid deciding for the moment.

[Antonio the Sixth]

So groups of people united by their shared desire to make money have rights according to the SCOTUS, but groups of people united by their shared values and beliefs don't. Why am I even surprised?

[Landslide Lyndon]

I have this suspicion that it is deemed such a tar-baby issue by some on SCOTUS, that they prefer to stall in hopes that the public square mitigates the issue to the point where SCOTUS feels more comfortable to just do nothing. This standing stuff is a moving target for SCOTUS, which it uses to give itself flexibility in what it wants to avoid deciding for the moment.

Maybe they should take inspiration from Potter Stewart on that matter (I know it when I see it).

[Antonio the Sixth]

This decision is an absolute disgrace, and no amount of specious legalese will change that.

[Alabama_Indy10]

This decision is an absolute disgrace, and no amount of specious legalese will change that.

Are you trying to win a medal for most rants in one thread?

[Fmr. Gov. NickG]

They ruled on the Maryland case too:

https://twitter.com/SCOTUSblog/status/1008717468704133120

What does it mean? I know we got a couple of lawyers around here.

Sounds like in Maryland the map defenders asked for an injunction either to prevent the case itself from going forward until another case was heard, or it asked for an injunction to stop the changes to the map until the appeals were final (Not sure of the case history). The Maryland Court determined that the injunction was not warranted, and the map defenders challenged the Maryland Court's determination that the injunction was not warranted. Upon review the Supreme Court determined that the map defenders did not present sufficient evidence demonstrating that the Maryland Court was wrong to deny the injunction. So now, whatever the map defenders were attempting to enjoin is permitted to continue, whether it be the lawsuit or the changes to map.

In the MD case, it was the plaintiffs asking for an injunction, not the defendants.  They wanted the court to issue an injunction to prevent Congressional elections from happening under the existing map.  So this is a (minor) victory for the Democrats defending the map.

[Fmr. Gov. NickG]

I think the headline that the Court "punted" here, or that they didn't decide anything about the merits of this case, isn't really accurate.

In truth, the Court substantially limited the sort of gerrymandering cases, and the evidence in those cases, that it would be willing to entertain in the future.  The majority opinion basically says that cases can only be brought on a district-by-district basis, and that the overall partisan composition of a delegation, however unbalanced, is not itself a constitutional injury to voters.  This makes standards like EG, as well as all partisan-symmetry-type measures, basically useless.

The concurrence of the four liberals did want to leave open the door for the use of statewide measures like EG in two contexts. First, they could be used as evidence of intent to dilute the vote in an individual district.  Second, they could be used in a 1st amendment claim made by a political party.  But it is important to note that Kennedy joined the majority opinion but NOT this concurrence.

[muon2]

An important provision was the decision to remand the case. SCOTUS usually dismisses standing cases like these and they said so in part III of the opinion. Only 2 justices (Thomas and Gorsuch) dissented from that part, which seems to mean that 7 justices would like to see the case again after the standing issue is cured.

From Part III

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[KingSweden]

I have this suspicion that it is deemed such a tar-baby issue by some on SCOTUS, that they prefer to stall in hopes that the public square mitigates the issue to the point where SCOTUS feels more comfortable to just do nothing. This standing stuff is a moving target for SCOTUS, which it uses to give itself flexibility in what it wants to avoid deciding for the moment.

Do nothing by letting redistricting commissions pass or come into effect in most states to make the issue moot?

[Badger]

This decision is an absolute disgrace, and no amount of specious legalese will change that.

Are you trying to win a medal for most rants in one thread?

He's been right so far.

[TJ in Oregon]

Guys, the efficiency gap was a weak metric. This is about the best we could have gotten from Whitford.

Little bit disappointed about Benisek, but the door is still wide open.

I don't give a sh*t about the efficiency gap. The WI legislative map is an obvious "I know it when I see it" case. Not everything needs to be based on some arbitrary numerical standard.

But they would have had to set some standard, and the plaintiffs in Whitford wanted that standard to be the efficiency gap.

Why does it need to be an analytical method? Why not simply ask why each unnecessary county/municipal split was made and if they can't come up with a non-prejudicial reason, strike the map then?

[Virginiá]

How disappointing.

This would really be tragic if SCOTUS manages to avoid reigning his blatant political corruption in the end. I know it's not over yet, but with Kennedy probably closer to the exit than usual, there is certainly a reason to be nervous. I also get that the efficiency gap was flawed, but I hope in the end they can settle on something, even if it starts out somewhat weak. It doesn't need to be perfect right now. We just need to get these gerrymanders scaled back a good bit so voters can once in a while elect the people they want and not whatever power hungry political party forced onto them. Whatever test they start with can be improved over time when the opportunities present themselves.

Otherwise, if the courts can't do what they are here to do and check the abuse of power of the other branches, then this country is hopeless, and quite frankly, has no business going around the world wagging a finger at other countries and peddling American-style "democracy", which apparently comes loaded with election rigging.

[Antonio the Sixth]

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http://fivethirtyeight.com/features/the-supreme-court-isnt-done-with-gerrymandering-yet/

Is there any truth to this claim, or is 538 still useless at anything that doesn't involve math?

[muon2]

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http://fivethirtyeight.com/features/the-supreme-court-isnt-done-with-gerrymandering-yet/

Is there any truth to this claim, or is 538 still useless at anything that doesn't involve math?

A claim by the minority party in a state is still left open by the decision. They still have to show a legal, not political harm. That's harder for a corporate entity like a party than for an individual. If they follow that road they'll probably make a 1st amendment claim about free speech. I think their stronger argument in legislative map cases is an article 4 claim about a republican form of government which is obviated when a map is drawn to guarantee one-party control.