Merrill v Milligan

[Torie]

The Court is now in session. You may be seated. In the case of Merrill v. Milligan (https://www.vox.com/policy-and-politics/2022/10/2/23377432/supreme-court-alabama-merrill-milligan-racial-gerrymandering-voting-rights-act), what is the purpose of this map that a pretend amicus curiae on the "right" side might  draw for consideration of SCOTUS appended to its brief?



https://davesredistricting.org/join/38cced31-87cf-4580-b058-6b79d48e9915

[ProgressiveModerate]

Actually that map is not bad. I would’ve just had 7 take in Montgomery and basically shift 4, 5, and 3 counterclockwise to adjust.

Or just exchange it for Shelby County.

[President Punxsutawney Phil]

Actually that map is not bad. I would’ve just had 7 take in Montgomery and basically shift 4, 5, and 3 counterclockwise to adjust.

Or just exchange it for Shelby County.

https://davesredistricting.org/join/9a7a01f2-ed2e-4f0b-b3f4-fe1cab33b58f
Thoughts on this?

[ProgressiveModerate]

Actually that map is not bad. I would’ve just had 7 take in Montgomery and basically shift 4, 5, and 3 counterclockwise to adjust.

Or just exchange it for Shelby County.

https://davesredistricting.org/join/9a7a01f2-ed2e-4f0b-b3f4-fe1cab33b58f
Thoughts on this?

Yes

[Torie]

"what is the purpose of this map that a pretend amicus curiae on the "right" side might  draw for consideration of SCOTUS appended to its brief?"

?

[jimrtex]

There was an actual map that split no counties. The two highest BVAP districts were just short of 50% and would likely be performing Democratic districts.

I would suggest that the person pretending to be a friend of the court adjust the map to use whole counties and report the relative populations.

An adjustment of the Gingles Test would be the drawing of compact districts that are performing for the minority population.

An advantage of the proposed map is that AL-1 and AL-2 are not bleached like they are in maps proposed by the plaintiffs.

[ProgressiveModerate]

Listening to the case audio from today here: https://www.supremecourt.gov/oral_arguments/audio/2022/21-1086

I'm not legal expert, but I am very familiar with what is in question, Gingles, and the whole process of redistricting. So far, I've been listening to the argument from the Merril side.

Frankly, justices on all sides, most notably Kagan, Kavanaugh, and Barret seemed a bit confused about what their central argument was, specifically in terms of why the creation of a 2nd black district would lead to a worse map than the current map, and whether this was a problem specific to just the district itself or a larger discussion around VRA. They seemed to heavily rely on the ideas of core retention of existing districts, COIs, and county splits for their argument (even though the county split argument was quite weak).

KJB was quite vocal and is obviously extremely skeptical of the argument Alabama is making, talking about how just the fact that there is racial polarization tends to define communities in the south should make a strong case for a 2nd black district hitting back the COI argument made by Merril.

There also was a bit of discourse around the fact that the previous 3-judge panel already found that under the current VRA, a 2nd black majority/opportunity district should be drawn, so why is Merril coming to the Supreme Court to argue specifically against it's drawing when that court already decided.

I'll follow up on how Milligan goes as well.

[President Punxsutawney Phil]

There was an actual map that split no counties. The two highest BVAP districts were just short of 50% and would likely be performing Democratic districts.

I would suggest that the person pretending to be a friend of the court adjust the map to use whole counties and report the relative populations.

An adjustment of the Gingles Test would be the drawing of compact districts that are performing for the minority population.

An advantage of the proposed map is that AL-1 and AL-2 are not bleached like they are in maps proposed by the plaintiffs.

Which county(ies) is Jefferson County paired with here?

[ProgressiveModerate]

Ok so Milligan brought up like 3 different people to essentially argue the same thing.

Imo, their argument was a lot more streamlined than Merrill's, basically saying that the 2nd black district was reasonably possible and was confirmed by the lower court and hence it should be drawn into the map.

One area that several of the conservative justices really questioned about was the computer simulations and the fact that never did the computer simulations produce 2 black majority districts. Merrill argued back that computer simulations can be insightful but still subject to the biases of the creator and aren't the end all be all. Things like COIs can be really hard to define in a simulation. They also argued that nowhere are computer simulations explicitly required but are simply a tool that can be used.

After that it seemed like everyone who spoke basically agreed that 2 black districts were possible and in an ideal world would be required under the existing section of VRA, it's really to what extent one goes out of their way to make 2 black districts at the possible expense of other redistricting principles.

I still doubt the votes are there on SCOTUS to actually make Alabama adopt a 2 black seat map (which would also likely trigger changes in Louisiana, and possibly Texas, and Georgia.). The range out outcomes seems to be from keeping VRA as is but lowering/clarifying the threshold to when a minority seat can be drawn to outright eliminating Section 2 of the VRA and making redistricting race-blind.

[Torie]

Well the point of my map is an elaboration on the Sandra Day O'Connor theme. Race based line drawing is no longer a necessary evil. Drawing a map hewing to neutral redistricting principles while ignoring race does not really change the equation that much. That is what I did when I drew the map - I was color blind. Yes, it does cost a black performing seat at the moment, but that might not long endure. Rural black seats are less and less in play. It is urban black seats where the action is. So your honors, a safe harbor from Gingles should be carved out for maps that hew to neutral redistricting principles. One should not gerrymander to either favor or harm a race or ethnic group. The concept of color blind is back. First for redistricting, and then for affirmative action. Color coding has outlived its shelf life.

That is the argument I would make for AL. Gingles in AL clearly does require the drawing of a second black CD under current law in my opinion, unlike in Louisiana. So the case needs to be made to change what is under the Gingles hood.

Class dismissed. Thanks PM for the oral argument commentary.

Here is a good discussion of what happened during oral argument. Kavanaugh seem troubled by the map AL drew. It did not look compact to him. It does not to me either. It was something of an erose black pack. So I would vote to jettison that map. It is not a race neutral map hewing to accepted redistricting principles. But AL need not draw plaintiff's map either. It itself is something of a racial gerrymander.

https://www.vox.com/policy-and-politics/2022/10/4/23387283/supreme-court-merrill-milligan-alabama-racial-gerrymandering-voting-rights-act

And here is the AL map triptic, the existing map in all of its ugliness, and the map I drew with two black Gingles CD's, which is also a fail, and then the most beautiful Torie amicus map.

[ProgressiveModerate]

Well the point of my map is an elaboration on the Sandra Day O'Connor theme. Race based line drawing is no longer a necessary evil. Drawing a map hewing to neutral redistricting principles while ignoring race does not really change the equation that much. That is what I did when I drew the map - I was color blind. Yes, it does cost a black performing seat at the moment, but that might not long endure. Rural black seats are less and less in play. It is urban black seats where the action is. So your honors, a safe harbor from Gingles should be carved out for maps that hew to neutral redistricting principles. One should not gerrymander to either favor or harm a race or ethnic group. The concept of color blind is back. First for redistricting, and then for affirmative action. Color coding has outlived its shelf life.

That is the argument I would make for AL. Gingles in AL clearly does require the drawing of a second black CD under current law in my opinion, unlike in Louisiana. So the case needs to be made to change what is under the Gingles hood.

Class dismissed. Thanks PM for the oral argument commentary.

Here is a good discussion of what happened during oral argument. Kavanaugh seem troubled by the map AL drew. It did not look compact to him. It does not to me either. It was something of an erose black pack. So I would vote to jettison that map. It is not a race neutral map hewing to accepted redistricting principles. But AL need not draw plaintiff's map either. It itself is something of a racial gerrymander.

https://www.vox.com/policy-and-politics/2022/10/4/23387283/supreme-court-merrill-milligan-alabama-racial-gerrymandering-voting-rights-act

And here is the AL map triptic, the existing map in all of its ugliness, and the map I drew with two black Gingles CD's, which is also a fail, and then the most beautiful Torie amicus map.

I personally think SCOTUS is going to be very careful with their words however they rule.

If SCOTUS basically says something along the lines of "Minority communities can and should be considered when drawing maps, but maps shouldn't exhibit racial sorting and hence a 2nd black AL district is illegal", then it opens the door for very viable challenges in states such as Texas, and even California where we see some of the most extreme racial sorting in the nation. I don't think that is what SCOTUS would want.

There's also the chance they just resolve Alabama's map by either choosing the existing map or a "race-blind" map and don't really touch VRA in any meaningful way.

The smartest thing SCOTUS could do if it purely wanted to maximize Rs advantage would be to not require "racial sorting" to comply with VRA but also not explicitly prohibit it. Or just annul VRA Section 2 all together but as the Vox article says, it seems like as things stand today that is not the way SCOTUS is leaning.




It's also worth noting that in Alabama, to make a compact true 7-0 map, you basically have to split every African American community in the state in some way. A map like this could only really be legal if SCOTUS fully guts VRA; even under a weakened VRA a crack of say Birmingham's black population would be a clear violation.

[Torie]

The county outlines are not in your map, but obviously Jefferson County is chopped, and I would be shocked if SCOTUS legalizes gerrymanders that screw minorities out of seats that they would have with a color blind map that hews to neutral metrics. And that is the problem with the AL map. It was a race conscious black pack. That is why Kavanaugh is having trouble swallowing it. The maps of both parties suck in that sense.

In listening to the oral argument, Alito was busy trying to save D's lawyer from himself. I think Alito has his five votes that a majority majority district needs to not be contrary to neutral redistricting principles to trigger Gingles, and mere compactness is not enough. That basically is a race neutral test, except that if there is one map drawn according to neutral principles that  is majority minority, that triggers Gingles. But P's map was not so drawn. There is no way in hell that any of their 4 maps can be considered drawn to neutral redistricting principles, no matter how much it is asserted to the contrary. The maps look absurd. You don't need monte carlo simulations and experts to tell you that. You can just take judicial notice of that.



The only problem for the defendants is that its  map does not look remotely like it is in the ball park either, except as a core protection concept. I think core protection should be at the bottom of the food chain myself. It was drawn as black pack to make the other CD's all utterly safe for the most extreme MAGA kooks.

[ProgressiveModerate]

The county outlines are not in your map, but obviously Jefferson County is chopped, and I would be shocked if SCOTUS legalizes gerrymanders that screw minorities out of seats that they would have with a color blind map that hews to neutral metrics. And that is the problem with the AL map. It was a race conscious black pack. That is why Kavanaugh is having trouble swallowing it. The maps of both parties suck in that sense.

Yeah I'm thinking worse case Dems end up with at least a Jefferson County based seat which they should be able to win most cycles. It would also probably mean there's a theoretically semi competitive AL-02 or AL-07 or something but practically it isn't due to the extreme polarization and depopulating black population.

The Jefferson County district is really nice too because it's just such a natural district . The Plantiffs arguing for a Jefferson County based black opportunity seat and a rural black belt seat would be a lot more reasonable.

A map such as this isn't race blind but is a lot more reasonable:



Either way the black belt is a clear COI that should be kept together for socioeconomic reasons and such, the issue is it spans the entire state east-west but drawing a  full east-west Config "traps" too many people udner it.

[ProgressiveModerate]

Under the premise Torie suggested that maps should be race blind but minorities shouldn't be out of a seat that would be drawn in a race blind map, would the South turn into:

Louisiana - A truly New Orleans black opportunity seat (no snake)

Mississippi - The Delta seat is slightly reconfigured since there's obvious sorting in Hinds County but overall, the MS Delta is a COI that's clear and large enough to sustain its own CD (with the help of Jackson ofc)

Alabama - A Birmingham based seat that's basically Jefferson County, plus a theoretically competative black belt seat that in practice isn't

Georgia - A slightly cleaned up GA-02; the seat overall makes sense but there's def racial sorting in Macon and Columbus

South Carolina - Tbh, the black population is distributed in quite a strange way. Perhaps the seat rids of the arm into Charleton and just does Columbia with rural blacks? This would obviously not be good for the GOP though cause it'd mean SC-01 would be more competative. No matter what, there will be a Dem pack that also functions as a black seat.

North Carolina - The black population of NC-01 is losing badly so idk how much longer this seat will even be possible. The court's config honestly seems pretty fair; no weird arms dipping down to grab extra black pockets from somewhere like Kinston. However, we could also see a map like the GOP's original map where the seat had a similar topline black population but shed liberal Greenville making the seat more competitive topline

Virginia - Both VA-03 and VA-04 are relatively safe for a variety of reasons and I don't expect the map to change at all. They are both natural seats as well.

Wild Cards:

California - Very clear and honestly extreme racial sorting, particularly around San Jose and the Central Valley. If the map was found to be illegal, who would draw the new map? A court? A new commission? The legistlature?

Texas - Again, very clear racial sorting, but it's a bit of an interesting case because Texas is truly a case where in order to make an effective GOP gerrymander, they have to racially sort. A good example would be 2 majority Hispanic districts nested within Bexar falls very naturally, but instead, the GOP does 1 Bexar Hispanic pack and also the skinny TX-35 to connect Austin and San Antonio. They know that 1 pack isn't enough for either city at this point, but 2 packs would be ceding another seat to Dems so they do this.

Another part of Texas's map is the fajitas which have long been drawn to be long to purposely avoid Hispanic packs along the border, even though a Hidalgo based seat along the border would be very natural and clear in terms of COI.

In Dallas, TX-33 sorts Hispanics even when a condensed Hispanic district based around Irving and Arlington can be drawn. Without the arm into Fort Worth though, the Dallas area gerrymander gets riskier for the GOP and they may be inclined to cede a 4th  Tarrant County based sink.

Tbh, even without racial sorting, there are def ways to keep Houston at 4 Dem sinks. It's really the fact that Rs denied a 2nd clear Hispanic seat in Houston which is the problem.

[Torie]

And that is precisely the point. As long as you don't gerrymander to screw minorities, there is not much in play anymore when it comes to requiring race based line drawing under Gingles. That is why given that context, it is probably going to be trimmed back in an opinion written by Alito. The main issue is what SCOTUS does with the black pack district. The major defense of the damn thing is least change. That doesn't cut it with me.

Alito and the 3 liberal women took over from the lawyers, and basically testified for the lawyers, as the lawyers stumbled. So over and over it was "Isn't it true ... yes your honor, exactly!"

[ProgressiveModerate]

And that is precisely the point. As long as you don't gerrymander to screw minorities, there is not much in play anymore when it comes to requiring race based line drawing under Gingles. That is why given that context, it is probably going to be trimmed back in an opinion written by Alito. The main issue is what SCOTUS does with the black pack district. The major defense of the damn thing is least change. That doesn't cut it with me.

So racial sorting is still allowed, just not required?

[Torie]

And that is precisely the point. As long as you don't gerrymander to screw minorities, there is not much in play anymore when it comes to requiring race based line drawing under Gingles. That is why given that context, it is probably going to be trimmed back in an opinion written by Alito. The main issue is what SCOTUS does with the black pack district. The major defense of the damn thing is least change. That doesn't cut it with me.

So racial sorting is still allowed, just not required?

The court is not going to reach that question. But I would think that the answer is yes, at least within the confines of proportionality.

One thing that you miss with your map is that you need two black majority CD's to be in the hunt to trigger two minority performing CD's under the existing Gingles parameters. Obviously, having two performing black CD's as opposed to majority black CD's makes for much prettier maps, but that is legally irrelevant.

[jimrtex]

Well the point of my map is an elaboration on the Sandra Day O'Connor theme. Race based line drawing is no longer a necessary evil. Drawing a map hewing to neutral redistricting principles while ignoring race does not really change the equation that much. That is what I did when I drew the map - I was color blind. Yes, it does cost a black performing seat at the moment, but that might not long endure. Rural black seats are less and less in play. It is urban black seats where the action is. So your honors, a safe harbor from Gingles should be carved out for maps that hew to neutral redistricting principles. One should not gerrymander to either favor or harm a race or ethnic group. The concept of color blind is back. First for redistricting, and then for affirmative action. Color coding has outlived its shelf life.

That is the argument I would make for AL. Gingles in AL clearly does require the drawing of a second black CD under current law in my opinion, unlike in Louisiana. So the case needs to be made to change what is under the Gingles hood.

Class dismissed. Thanks PM for the oral argument commentary.

Here is a good discussion of what happened during oral argument. Kavanaugh seem troubled by the map AL drew. It did not look compact to him. It does not to me either. It was something of an erose black pack. So I would vote to jettison that map. It is not a race neutral map hewing to accepted redistricting principles. But AL need not draw plaintiff's map either. It itself is something of a racial gerrymander.

https://www.vox.com/policy-and-politics/2022/10/4/23387283/supreme-court-merrill-milligan-alabama-racial-gerrymandering-voting-rights-act

And here is the AL map triptic, the existing map in all of its ugliness, and the map I drew with two black Gingles CD's, which is also a fail, and then the most beautiful Torie amicus map.

Singleton Amicus Brief

The Singleton plaintiffs argued before the district court that the legislature plan was drawn with racial intent, particularly because of the division of Jefferson and Montgomery counties. Because they were making a claim under the constitution and not the VRA, they were not consolidated in the case before the SCOTUS. Conceivably the SCOTUS could remand the case back to the district court to rule on the constitutional issues.

The no-county split map is midway through the brief.

[ProgressiveModerate]

Well the point of my map is an elaboration on the Sandra Day O'Connor theme. Race based line drawing is no longer a necessary evil. Drawing a map hewing to neutral redistricting principles while ignoring race does not really change the equation that much. That is what I did when I drew the map - I was color blind. Yes, it does cost a black performing seat at the moment, but that might not long endure. Rural black seats are less and less in play. It is urban black seats where the action is. So your honors, a safe harbor from Gingles should be carved out for maps that hew to neutral redistricting principles. One should not gerrymander to either favor or harm a race or ethnic group. The concept of color blind is back. First for redistricting, and then for affirmative action. Color coding has outlived its shelf life.

That is the argument I would make for AL. Gingles in AL clearly does require the drawing of a second black CD under current law in my opinion, unlike in Louisiana. So the case needs to be made to change what is under the Gingles hood.

Class dismissed. Thanks PM for the oral argument commentary.

Here is a good discussion of what happened during oral argument. Kavanaugh seem troubled by the map AL drew. It did not look compact to him. It does not to me either. It was something of an erose black pack. So I would vote to jettison that map. It is not a race neutral map hewing to accepted redistricting principles. But AL need not draw plaintiff's map either. It itself is something of a racial gerrymander.

https://www.vox.com/policy-and-politics/2022/10/4/23387283/supreme-court-merrill-milligan-alabama-racial-gerrymandering-voting-rights-act

And here is the AL map triptic, the existing map in all of its ugliness, and the map I drew with two black Gingles CD's, which is also a fail, and then the most beautiful Torie amicus map.

Singleton Amicus Brief

The Singleton plaintiffs argued before the district court that the legislature plan was drawn with racial intent, particularly because of the division of Jefferson and Montgomery counties. Because they were making a claim under the constitution and not the VRA, they were not consolidated in the case before the SCOTUS. Conceivably the SCOTUS could remand the case back to the district court to rule on the constitutional issues.

The no-county split map is midway through the brief.

The whole county argument only works if you have counties of relatively low population which is true in some parts of Alabama but that AL-06 is just crazy.

Infact nationally the only whole county districts are at large, WV, and IA. Yes you don't want excessive county splits but a lot of times counties are just way too big and also pretty arbitrary.

[Torie]

Here is another reading the tea leaves from the oral argument.

https://www.politico.com/news/2022/10/04/high-court-race-neutral-voting-rights-act-00060270

My surmise is that the Alito opinion will hold that it is impossible to draw two black districts in any reasonable looking map, and in order to trigger Gingles one must have in hand a reasonable looking map. The precise definition of what is reasonable can be further fleshed out in subsequent cases, but the maps presented by Plaintiff are not reasonable, and it is clear that no computer could produce a map that is reasonable. Among other things Mobile must have a nasty chop, and Jefferson County must be sliced and diced.

We shall see.

[Stuart98]

Looks reasonable to me.