For he has been trained in the arcane arts to devise formulae most obscure, but indeed, there layeth within these symbols, POWER!!! For, you see, Kennedy has been waiting. Waiting, most patiently, but waiting. And surely, now shall be the time when Kennedy shall be moved. He shall be, he shall be moved. Is there a "
What? Standing?! What the fuck do you mean the plaintiffs don't have standing? Rick Hasen, who runs the Election Law Blog, referred to Anthony Kennedy as Justice Hamlet for his refusal to issue a ruling. You say the plaintiffs don't have standing when you are ducking the question, like a coward. Except, Hasen's making a Shakespeare reference, so it's, like classy 'n stuff. (Psst! Gordian Knot: Henry V).
I'm me, so I'm just going to tell Kennedy one thing: Shit, or get off the pot. I'll make Shakespeare references along the way, but I'll tell Kennedy to shit or get off the pot.
OK, here's the deal. Gill v. Whitford. The Supreme Court has been saying for years that, in theory, a partisan gerrymander could go so far as to be unconstitutional, but a) they have never said how far that is, and b) they would need a standard by which to make such judgments, which they haven't had yet. So, a few people, including Eric McGhee, worked on a mathematical estimation procedure that might get the Kennedy vote to create a standard for saying "no, you went too far." It's actually a pretty cool technique, from a scholarly perspective. Cool math is cool math. I like cool math!
Essentially, the procedure estimates how efficiently a redistricting plan distributes Democratic and Republican voters. If one party's voters are spread out more efficiently to win more seats, that's a gap. That creates a bias, and there's your measure. Bob's your uncle, and Anthony's your swing vote.
Done, right?
No. The Court chickened out and refused to make a ruling, sending the case back to the lower courts. This kind of ruling on "standing" is, in my political science-not-law assessment, what we call, "bullshit." The people who brought the challenge were affected by the statewide plan, and SCOTUS said you can't challenge the whole plan, just your own district, but that misses the point about how plans are drawn. Every line change creates ripple effects to maintain equal population under Baker v. Carr, so... no. The point of McGhee's measure is that it is a measure of the statewide plan's efficiency gap. You have to look at it at the state level. That's the point. The Court is wrong on the substance. Why did they do it? They just didn't want to issue a ruling. They did the same thing they have been doing for years on partisan gerrymandering-- ducking the issue, and playing for time because they can't decide.
OK, Hamlet, shit or get off the privy. I'd really like this to be settled before the next time I teach this stuff, but... that ain't gonna happen. You people can't make a fucking decision.
You had ONE JOB!
Remember, though, that not everything you hate is unconstitutional. Personally, I hate drivers who don't use their turn signals. There are traffic laws involved here. You know what isn't involved here? The Constitution. When you don't use your turn signal, you have committed a minor traffic violation and pissed me off. What you haven't done is violate anyone's constitutional rights. This isn't a constitutional issue. In theory, there could be a place within the US without traffic regulations requiring the use of turn signals. I wouldn't want to drive there, but there are plenty of places I don't want to drive. New York, Boston... My point is that there is shitty behavior that doesn't violate anyone's constitutional rights.
On the other side, what about stupid laws that aren't unconstitutional? There is a reasonably high likelihood that you are reading this from Ohio, and perhaps have had to deal with... the Ohio tax code and its interaction with the municipal income tax system here. It sucks. Why? It was designed to make a Rube Goldberg device look like a model of simplicity itself. That doesn't make it unconstitutional. That just makes it stupid. Not every bad law is an unconstitutional law. Telling yourself otherwise is how Republicans are now talking themselves into a silly lawsuit about how the repeal of the individual mandate makes the pre-existing condition protections in Obamacare unconstitutional. Is that argument absolutely fucking stupid? Yes. And it is the result of telling yourself that everything you hate must be unconstitutional.
Partisan gerrymanders suck. I'm an advocate of bipartisan gerrymanders. That's different. However, just because partisan gerrymanders suck doesn't make them unconstitutional, and I remain less-than-fully convinced by the arguments against their constitutionality. This is some weird-ass 14th Amendment shit. Look, the 14th Amendment provides for equal protection under the law. Extending that to include partisanship and election law is some sketchy territory.
Could I argue that, if my candidate loses an election, I no longer have equal protection under the law because voters of the winning party got their way and I didn't? Hopefully you see the problem with taking this argument to its logical extreme. In Gill v. Whitford, the efficiency gap argument doesn't do that, but once you make partisanship and representation the concepts by which we assess equal protection claims, why can't I make that claim? At the level of legislative elections and redistricting, I'm kind of OK with the implication here because it goes as follows: draw homogeneously Democratic districts, and homogeneously Republican districts. That way, nobody is stuck in a district where they voted for the loser. That's actually the core of the arguments I have made about bipartisan gerrymanders for years. Of course, you still have that presidency problem!
Hey, SCOTUS! I'm not, like, equally protected 'n shit! I didn't vote for Trump! Throw that sumbitch outta office! OK, technically, the emoluments clause gives them plenty of other reasons to boot his ass to the curb, but you get my point. This is a tenuous argument, constructed not based on a good-faith reading of the 14th Amendment, but reverse-engineered for the purposes of finding a constitutionalesque argument against partisan gerrymandering that might appeal to the ever-constipated Danish Justice. The text editor in my blog didn't like "constitutionalesque." Too bad. I like it. I'm going to call it a word now, and start using it. I shall define it as follows. Constitutionalesque: having the appearance of being constitutionally-grounded without actually being constitutionally-grounded. Anyway, my point is that the plaintiffs' argument in Gill v. Whitford was always kind of bad faith. Partisan gerrymanders are bad. So, let's find a constitutionalesque argument that might get Kennedy on board.
But, he still hasn't made up his mind about whether or not that bowel movement will occur, and the sign on the lavatory still says, "occupied."
Yes, I am doing damage to the plaintiffs' argument in Gill v. Whitford. The efficiency gap argument is one of bias, whereas I am posing the question of whether or not those who lose an election have a claim against the 14th Amendment. However, once you pose partisanship as justification for a 14th Amendment claim, that goes to some ugly places in election law.
What happens now? I still don't know. Remember, though, that not everything you dislike is unconstitutional. Also, refusal to issue a ruling because of standing? Bullshit and cowardice.