fagan2888 / gerrymandering

This is the back-end for the Princeton Election Consortium Gerrymandering project

Gerrymandering

This is the backend for Princeton Gerrymandering project

Current Status

This project is no longer under active development. Currently, many of the efforts to combat gerrymandering are stalled, but we expect there to be an increase again in 2020 and beyond. There is still a strong core of people interested in combating gerrymandering, but this group is not actively involved in a project. If you have an idea for how to combat gerrymandering, please reach out to us. You can reach out in the Slack channel (#p-gerrymander) or contact Julius Simonelli (jss367 in Slack).

What we accomplished

This group participated in the writing of an Amicus brief in the Gill v. Whitford Supreme Court case.

Background

In this effort, D4D was working with Professor Sam Wang of Princeton University to prepare an amicus brief for the Gill v. Whitford Supreme Court gerrymandering case. Professor Wang wrote three statistical tests to measure partisan gerrymandering that he wanted to implement in Python. He also wanted to make his gerrymandering website more user-friendly. D4D had teams working on both of these aspects.

What is an amicus brief?

An amicus brief is a submission to a court by someone who isn't a litigant to the case but still wants to provide an argument to the courts. The Gill v. Whitford case was brought in response to the Wisconsin State Assembly district plan that was drawn up after the 2010 census. The Republican party was in control of the state government after the 2010 election and therefore drew up the district maps (in some states a nonpartisan commission draws the maps, in others, it's the party in power). The first election after the maps were drawn was in 2012. While the Democrats won the majority of the votes, the Republicans won 60 out of 99 seats in the Assembly. The results for 2014 and 2016 were similarly disproportionate. In 2015, the 2010 Wisconsin redistricting plan was challenged as unconstitutional.

Historical context

The issue of partisan gerrymandering is no stranger to the Supreme Court. The most recent and important SCOTUS precedent for this case is Vieth v. Jubelier (2004), where a 5-4 majority ruled that the question of partisan redistricting was nonjusticiable (i.e., it's purely a political matter and not for the courts to intervene). Justice Kennedy was the deciding vote in this case, though he only concurred with the judgment and did not join the decision. He concurred because he felt that no judiciable standard currently existed. He did not, however, agree that no standard could ever exist. He stated in his concurrence: "I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases."

In the case of Gill v. Whitford, the lower court ruled 2-1 that the partisan gerrymandering in Wisconsin after the 2010 census was unconstitutional. They considered the notion of a judicially manageable standard that Justice Kennedy had found lacking before and came up with a three-pronged approach. They declared that a districting plan is unconstitutional if it "(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds." They found that all three conditions were met in this case. Following this, the State appealed to the Supreme Court and the case was accepted.

What does this amicus brief focus on?

The amicus brief was submitted on 30 August 2017. It attempts to convince the judges (read: Justice Kennedy) of two points:

1. The issue of political gerrymandering is judiciable, i.e. partisan gerrymandering is a violation of the Constitution and the courts have the right and responsibility to intervene.
2. A judicially manageable standard for determining gerrymandering does exist

Most of the brief concerns the first issue, arguing that it would be appropriate for SCOTUS to make a ruling in the case of partisan gerrymandering (i.e., that it is judiciable). There is a fair amount of precedence for courts deciding that congressional districts are unconstitutional. Racial gerrymandering is illegal under the Voting Rights Act, but partisan gerrymandering is currently not. It is illegal to pack all minorities into a single district (Covington v. North Carolina, 2017), but you can with a political party. The brief argues that creating a system to intentionally disenfranchise a group of people based on their political affiliation violates the Equal Protection Clause of the 14th Amendment as well as the 1st Amendment’s prohibition on discriminating based on viewpoint.

The second point the paper tries to make is that there is a judicially manageable standard with a concept known as "partisan symmetry". Partisan symmetry means that if one party wins, say, 55% of the vote and wins 60% of the seats, that if the other party won 55% of the vote under a likely voting scenario, they would also win, approximately, 60% of the seats. Note that this is different than proportional representation where a party that wins say, 40% of the votes is guaranteed 40% of the seats. Proportional representation is not guaranteed by the Constitution and is not what was being proposed (even though Chief Justice Roberts called it that and the attorney for the plaintiff had to correct him).

The point of the briefing isn't to say that we found THE statistical test to determine excessive partisan gerrymandering but to say that there are many tests that would work and here are a few examples. In many cases, the Supreme Court provides the guiding principles and the lower courts determine for themselves what metrics are best.

Resoltuion

The Supreme Court remanded the case back to the lower courts, which means the matter was not settled. The Supreme Court felt that the plaintiffs had not demonstrated standing, i.e. that the plaintiff had not shown had they had been harmed. During the oral arguments, Chief Justice Roberts referred to the statistical methods presented as "sociological gobbledygook", suggested that a simpler approach to determine gerrymandering might be needed.

References:

Full text of the amicus brief: http://election.princeton.edu/wp-content/uploads/2017/08/16-1161bsacHeatherKGerken-et-al.pdf Professor Wang's article on the three techniques: http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2016/06/3_-_Wang_-_Stan._L._Rev.pdf Professor Wang's website on gerrymandering: http://gerrymander.princeton.edu