At issue in Gill v. Whitford is the question of the constitutionality of "partisan gerrymandering." Let's define our terms here. A "gerrymander," (hard-g, after the pronunciation of Elbridge Gerry) is an attempt to draw district lines in order to achieve some strategic/political end. Every redistricting plan is a gerrymander, as far as I'm concerned, but that's because I have yet to undergo the social conversion process that Number 2 keeps threatening. Every plan achieves some strategic/political end, therefore every plan is a gerrymander. Not every gerrymander is a partisan gerrymander, though. A partisan gerrymander helps one party get a greater proportion of seats than its population would justify, in representational terms through a "pack-and-crack" strategy. It works as follows. You take the other party's voters, and pack them as tightly as possible into a few districts so that they waste their votes, and give your own party a thin majority in as many districts as possible. Like so:
Imagine you have a "state" with 33 voters, to be divided into 3 districts, with 21 Democrats and 12 Republicans. If District 1 has 6 Republicans and 5 Democrats, and District 2 has 6 Republicans and 5 Democrats, and District 3 has 11 Democrats, then the Democrats are "packed" into District 3. A lot of Democrats are "wasted." I attended Berkeley for grad school, so I still have mental images of that. If those Democrats were spread out more efficiently, they could win more seats. The other 10 Democrats, from Districts 1 and 2, are cracked. If some were shifted into one district rather than split among two, they could win at least one more seat, but... they're cracked. Instead, the GOP wins two out of three seats, with only a third of the population. Of course, a small shift in party loyalty could cost the GOP big, so there is a risk, and I calculated how far a party can go with partisan gerrymandering without risking too much for future elections in this paper. They can actually go pretty far-- further than they usually do. It is actually kind of puzzling why we don't see more partisan gerrymandering, in my opinion. Anyway, that's how the math works. Pack-and-crack.
Since neither Number 2 nor the Committee have subjected me to "social conversion" yet,* I'm actually a fan of a kind of gerrymandering that goo-goos hate: bipartisan gerrymandering. That's when you eliminate competitive districts, and just draw safe districts for each party. Here's the fun thing about bipartisan gerrymanders: you create a partisan balance that matches the partisan balance of the electorate, in contrast with a partisan gerrymander. Partisan gerrymanders and bipartisan gerrymanders are very different. I like the latter, and made my early career arguing for them. The former are indefensible.
In democratic theory terms, anyway. Constitutionality is another matter, and that's what leads us here. What does the Constitution say about district lines? Um.... Uh..... [Crickets....] It wasn't until Baker v. Carr 1962 that the Supreme Court even said that districts had to have equal population! Why? Because the Constitution doesn't say a fuckin' thing about it. In the absence of direct instructions, you've got all that 10th Amendment stuff about leaving it to the states.
What happened in Baker v. Carr? Well, you start getting 14th Amendment challenges, and equal protection under the law issues. If I am in a district with 100 times as many people as you, your vote counts for more than mine. Of course, since the Senate is set up that way anyway, it took until Baker v. Carr for the Supreme Court to think this was a legitimate constitutional point. The Court has not wanted to get involved in this because the Constitution doesn't really say much of anything about how district lines must be drawn. It is easy to devise principles, in democratic theory terms, but connecting those principles to anything in the Constitution is hard. Because the Constitution doesn't say anything about it. The Constitution is not a moral document. It is vague, badly written, the result of a sequence of compromises and kludges, and a total fucking mess.
Remember, I hate partisan gerrymanders. Bipartisan gerrymanders-- good. Love 'em. I hate partisan gerrymanders. Where we are now, though, is that (who else?) Anthony Kennedy told everyone that he hates them too, but wants someone to hand him a reason and a standard by which to strike them down. That may happen in Gill v. Whitford.
The case is built around an elaboration of some of what I have just addressed. In the simplest form, the mathematical problem behind the partisan gerrymander is what we call the "seat-vote gap"-- the mathematical gap between the proportion of the seats that a party gets, and its share of the vote. You can shift to the relationship between an individual's place in the population and potential for representation, how one party is favored in that, and that is sort of where the case goes.
Anyway, the case is built around a specific new measure of partisan bias in redistricting plans. Personally, I was satisfied with the older measures, like those of Gary King & Andrew Gelman, but Anthony Kennedy wanted a new measure, so he got one, and here we are. I'll probably write a more elaborate piece on the new measure, how it contrasts with Gelman & King, and all that good stuff later on, when SCOTUS issues a ruling, but for now, my coffee is running low, so I'll wrap this up for the morning.
I see a few main issues. First, as with any such measure, a dividing line between "constitutional" and "not constitutional" is an arbitrary line. Selecting that line, and finding that line within the Constitution, which doesn't mention this shit at all, gets tricky. But hey, if SCOTUS just wants to make this easy, let's have a zero tolerance policy for bias and have bipartisan gerrymanders all-around! Otherwise, you get competitive districts, which throw off the partisan balance once you aggregate, because the aggregation matters too! (I'll get to that when we get to a ruling, and the difference between measures of bias at the individual and aggregate level). Just sayin'... Next, is partisanship a protected class? Should it be? Those aren't the same questions. Should political beliefs be protected from discrimination? Again, a separate question. Would you apply that rule to all beliefs?
Finally, this whole process demonstrations one of my central gripes with the legal field in its entirety. Partisan gerrymanders suck. There aren't many people who will defend them in principle, except for those who will benefit from a specific partisan gerrymander defending their right to draw that specific gerrymander. In the abstract, pretty much anyone with any grounding in democratic theory will agree that they suck. They violate any principle that you devise if you begin from first principles. So, those who begin from first principles are looking for a constitutional basis to rule them unconstitutional. Begin with the desired outcome, and then look for the constitutional argument. I often describe constitutional law as a field based around motivated reasoning. Ideology temporally precedes legal thought, by educational sequence, and yet ideology and legal thought so often correlate, if imperfectly. Why? Motivated reasoning. This is the clearest demonstration of motivated reasoning you will find. Begin with the premise that partisan gerrymandering is bad, which it is! Then, look for an argument in the Constitution, which... maybe ain't there, and try to find a way to pitch it to Anthony Kennedy, who has admitted that he doesn't like partisan gerrymandering, and kinda wants to get rid of them, but wants an argument, and the whole fuckin' thing is a motivated reasoning circle jerk.
Somebody please give the Constitution some goggles.
*Are you really still reading this blog without getting the reference in the title? Fine. Here it is. The Prisoner, "A Change of Mind." There. I said it.
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