The Supreme Court issued two major rulings this week. If I were to hypothesize, you liked one, and hated the other. However, both rulings were correct, for the same reason. I am, generally speaking, skeptical of the field of constitutional interpretation. (As I have written, "Originalism is bullshit, and so is every other philosophy of constitutional interpretation"). However, there are times when the Constitution is clear. When it is clear, either by its directives or blatant lack thereof, the Supreme Court should, if it does its job correctly, say so.
The Supreme Court has been dithering for years on the issue of partisan gerrymandering, leaving me endlessly frustrated as a professor who teaches about Congress, unable to give my students clear instruction because the Court hasn't given clear instructions. Yesterday, in Rucho v. Common Cause, the Supreme Court finally issued a determination on partisan gerrymandering. It is constitutionally permissible, at least for all practical purposes. The Court also ruled that the Trump administration's decision to add a citizenship question to the Census is at least temporarily blocked because they lied about why they were doing it, and underneath the question is the constitutional imperative to conduct an accurate head-count.
If you are reading a Trump-bashing political scientist's blog, you probably got really angry about that ruling on partisan gerrymandering, but appreciated the Court blocking the Trump administration's attempt to mess with the Census. The problem is that the Court was right in both cases for the same reason. Bad faith argumentation, as I said. Let's handle these sequentially. First, partisan gerrymandering.
OK, time for some review. Sorry, for veterans, but I need to do this because there are a lot of misconceptions, and there's a lot of bullshit about redistricting. You have almost certainly been fed line after line of bullshit about "gerrymandering," so let's get this straight.
First, the worthless waste-of-carbon pundits who don't read any actual scholarship (that would be the stuff published in peer-reviewed books and journals by people including... me) have failed you by failing to ensure that you understand the difference between partisan gerrymandering and bipartisan gerrymandering. They are very different. In order to explain it, think of a hypothetical state with 33 people, to be divided into three districts. Suppose there are 21 Democrats and 12 Republicans.
A Republican partisan gerrymander goes as follows: District 1 has 6 Republicans and 5 Democrats, District 2 has 6 Republicans, 5 Democrats, and District 3 has 11 Democrats.
That's what we call a "pack and crack." The plan "packs" 11 Democrats into District 3 so that they are inefficiently used. The Democrats could win more seats if those voters were more spread out rather than packed. What kind of district is District 3? Probably what we call a "majority-minority" district. African-Americans, mostly. This gets into the overlap between race and partisanship, and in Cooper v. Harris, the Court said that you can't use party as a cover for a racial gerrymander, noting that race and party are closely tied, which started muddying the waters on the constitutionality of partisan gerrymanders, but anyway, that's the packing part. The cracking part is District 1/2. There are 10 Democrats total. Enough to win at least one more district, if they weren't cracked cross two districts.
In contrast, the Republican voters are spread out with maximal efficiency. More efficiently than the Democrats. You can measure the efficiency with which Democratic and Republican voters are spread out, and Eric McGhee did construct such a measure, which was the basis of the Wisconsin challenge in Gill v. Whitford, which no longer matters, but the basic point here is that a pack-and-crack strategy gives one party an advantage by spreading its voters out into thin majorities in as many districts as possible.
This is very different from a bipartisan gerrymander. Here's the bipartisan gerrymander. District 1: 11 Republicans, no Democrats. District 2: 10 Democrats, 1 Republican. District 3: 11 Democrats, no Republicans. Note that each party uses its voters equally inefficiently. The GOP has about a third of the vote, and it gets a third of the seats.
Yay!
These are very different plans. You will see worthless idiot pundits complain about partisan gerrymanders getting rid of competitive elections.
WRONG!!! Were you following that math? In the pack-and-crack strategy, there were two districts that were actually within reach for the Democrats! Flip just a couple of voters and those seats flip! If you are going to give your own party a majority in as many districts as possible, that means spreading your voters out thinly. The more partisan advantage you try to take, the more competitive those seats get! This is basic math. How much partisan advantage can you take without putting yourself too much at risk?
It turns out, some political scientist calculated the numbers on that.
That'd be... me. However, the basic point is that when people tell you that partisan gerrymandering eliminates competitive elections, what they are doing is confusing partisan gerrymandering with bipartisan gerrymandering.
However, bipartisan gerrymandering creates proportionality! And it does so by getting rid of competitive elections!
These people don't know what they are saying because they've never done the damned math. When you hear people whining about the effects of partisan gerrymandering on competition, they are confusing different forms of gerrymandering.
OK, next bit of mythbusting. Lots of whining about how "gerrymandering" causes polarization. So much bullshit here that it's hard to know where to begin. First, there is another layer here at which people are confusing partisan and bipartisan gerrymandering.
At the core of the claim is what we call "the marginality hypothesis," which is the idea that marginal elections cause candidates to move to the ideological center. Get rid of marginal elections and the candidates get more extreme. Primaries and yadda-yadda-yadda.
First, in theory, bipartisan gerrymandering could do this, but partisan gerrymandering? Not so much. The marginality hypothesis suggests the end of centrism in packed districts, but partisan gerrymandering can't cause polarization across the board. That's not how the math works. Again, this brings me back to the point that "gerrymandering" alarmists don't understand the difference between partisan and bipartisan gerrymanders. They look absolutely nothing alike. To a goo-goo*, though, gerrymandering=gerrymandering=bad! Idiots.
That brings me to empirics. What role has redistricting played in polarization? Slim to none. Walking you through the econometrics on this in a blog post would be hard, so try this.
Has the Senate gotten more polarized?
Do we redraw state lines every decade?
What does that tell you? It should tell you that the blame-everything-on-gerrymandering stuff is a bunch of bullshit.
___________
OK, we are now ready to talk about Rucho v. Common Cause and whether or not partisan gerrymanders are unconstitutional. Your first task is to break out your handy-dandy copy of the Constitution and find for me the passage that prohibits partisan gerrymandering. Go on. I'll wait...
Are you back? Did... did you find it?
Notice that I didn't ask you anything about precisely how awful partisan gerrymandering is. And I type that as someone who has actually published, in peer-reviewed journals, about the importance of having redistricting plans with proportionality by drawing connections between that, democratic theory, and math. See, for example, my 2005 article, "Competition, Representation and Restricting," in the Journal of Theoretical Politics. Yeah, really. I did the math on this stuff, and wrote about its connections to democratic theory. This is what I do.
There's lots of stuff that's bad for democracy. Let's all take a moment to look back on the departure of Sarah Huckabee Sanders. Bright Line Watch just put out a new batch, and I'll have more to say about that soon, but as you know, I think that the biggest danger to democracy in the US is the degradation of truth, and one of the people in the US who has done the most damage to democracy over the last two years is Sarah Huckabee Sanders with her constant, shameless, brutal, craven lying. There is little in the world lower than Sarah Huckabee Sanders.
When the White House Press Secretary lies to the press, constantly, I assert that this is harmful to democracy. Can I assert that it is unconstitutional for Sarah Huckabee Sanders to lie to the press on a constant, shameless basis because she undermines democracy?
No. Not everything that is bad is unconstitutional. Not everything that undermines democracy is unconstitutional. The inability of the redistricting reform advocates to distinguish between what is bad for democracy and what is unconstitutional is at the heart of the issue here.
Notice, now, that nearly every hostile response to the Supreme Court's decision in Rucho has been, not "how dare they ignore the clear wording of the Constitution, which obviously prohibits partisan gerrymandering," but, "how dare the Supreme Court permit this bad thing to happen when it is so obviously bad for democracy?"
Of course, I am accustomed to being in a weird place with goo-goos. My early publications, including the aforementioned JTP article, built my career by arguing that competitive elections are paradoxically harmful for democracy. Hence, bipartisan gerrymanders are good. Partisan gerrymanders are bad. When talking about bipartisan gerrymanders, goo-goos are accustomed to me being the enemy. 'Cuz... I am. I'm just right. Math says so.
However, when the topic turns to partisan gerrymanders, in normative terms, I have always been on the side of the goo-goos. They're bad. Hence, I actually supported a redistricting reform proposal here in Ohio aimed at minimizing the risk of partisan gerrymandering! Right here on this blog! I'm always on the record opposing partisan gerrymanders in principle and in practice.
There are a few things you can do with that, though, when it comes to constitutional interpretation.
Door Number 1: First, and most correctly from an intellectual perspective, you can ignore it. The Supreme Court is posed with the question in Rucho: is there a constitutional prohibition on partisan gerrymandering, and if so, where, specifically, is the line, keeping in mind that you cannot have a prohibition without a specifically located line. The most correct way to approach this question, given any particular normative assessment if partisan gerrymandering is to disregard that normative assessment.
Yes, you absolutely can do that. It's just hard, and most people (Justices included) are lazy as fuck. This is what I do, because I have to be superior to everyone. Otherwise, I can't lord my own superiority over everyone. I don't like partisan gerrymandering. It's bad. Do I factor that into my constitutional interpretation? No. Not at all.
That's hard work, though.
Door Number 2: Still OK, but less correct, and very fraught, as we'll see. You can say, OK, I don't like partisan gerrymandering, so it'd be nice if I could find a way to call it unconstitutional. So, I'm going to look really, really, really hard for a way to make that argument. That's... well, the problem is that you are basically courting cognitive bias. I'll get to that.
Two more.
Door Number 3: You can say, I hate partisan gerrymandering, so I'm going to latch onto anything posing as a constitutional argument, just 'cuz it's bad, but really I'm just going after it 'cuz it's bad. Where things are going to get tricky is that you may think you're taking Door Number 2, and you make a wrong turn down a passage leading to the same hall as Door Number 3. That way lies bullshit and lies.
Door Number 4: Finally, you can just ignore the text of the Constitution altogether, talk about how bad partisan gerrymandering is for democracy, and laud the Constitution in abstract terms as a guiding document for democracy without reference to the specific passage that you are claiming prohibits partisan gerrymandering. Or maybe just ignore the Constitution altogether. At this point, why bother? Anyone who does this is an intellectual fraud anyway.
And hopefully you are now realizing how many people took Door Number 4.
Door Number 4 is not a valid legal argument. If all you are doing is talking about how bad partisan gerrymandering is for democracy, you aren't making a constitutional argument at all. And that's a lot of the critiques going around of the majority opinion in Rucho, including from the minority on the Court.
So, Door Number 1 is the right door, Door Number 4 is the wrong door...
The tough part is distinguishing Doors 2 and 3. Especially for yourself. And here's the pitfall. Remember how the conservatives went absolutely apeshit over Obamacare? Remember how they started filing loony lawsuits. Do you know how that started?
It actually started with one of my colleagues making exactly this mistake. Jonathan Adler, here at the CWRU Law School. Here's what happened, in his own telling. Adler is a libertarian, not a conservative. His own initial reaction to Obamacare was this: bad policy, but clearly constitutional. But, he started talking to a bunch of fellow right-leaning libertarian types, and they made an active effort to talk themselves into the belief that it was unconstitutional.
Um.... that's ass-backwards. And it is exactly the opposite of what I do in literally every situation, and I hate people who misuse the word, "literally." Remember what I said about courting confirmation bias? There it is, right there. John Roberts did it correctly. (Mostly). He looked at a thing that walked like a tax, quacked like a tax, and said, yup, that motherfucker's a tax. I don't care if the Democratic Party refuses to call it that for stupid political gamesmanship. Quack, quack, motherfuckers. (I don't really buy how he handled anti-injunction, but that's another matter...) However, if you are ideologically opposed to Obamacare, then you'll want to tell yourself that it's unconstitutional, and if you want to tell yourself that it's unconstitutional, you're going to say, well, the Democrats won't call it a tax, so it isn't really a tax, so it isn't an Article I power, because, rhetoric!
I call bullshit, and so should everyone. Just like John Roberts. See, that's the problem when you start with an ideological goal, and then look for a constitutional argument. You think you're heading into Door Number 2, but it's really Door Number 3. Just like the conservatives on Obamacare.
That way lies bullshit and lies.
How do you know when you are doing it? Basically, this. How far are you reaching to make your argument? When you ignore the plain substance of the bill and just try to do some jiu-jitsu with your opponent's political rhetoric, you've gone off the deep end. As an example.
So, how far do you have to reach to find a constitutional argument that partisan gerrymandering is unconstitutional? Pretty far. 'Cuz there's nuthin' in that document about district partisan composition. It wasn't even until 50 years ago that the Court found an equal population requirement, because it doesn't really say that. In a series of decisions beginning with Baker v. Carr, they found an equal population requirement because of the equal protection clause of the 14th Amendment, but that was fraught because... how can equal population be a constitutional imperative, given the Senate? Stepping back from your normative conceptions, you should see the logical issue there.
Still, equal population follows logically. It's just that the Senate created a wrinkle. The 14th amendment says that one person has to get the same treatment under the law as another. You can argue about intent and the prevention of discrimination, but at the level of population, it's easy if you are willing to ignore the implications of the Senate. If 1,000 people in one district get their own Representative, and then 100,000 people adjacently get one, the 1,000 have an advantage. They are more represented. Once you try to move to partisanship, though, things get weirder.
First, the idea of party as a protected group, along the lines of race, sex, religion... that's a real reach. There is nothing in the text, and nothing historically to get you there. Nothing. This is a major departure from the plain textual meaning of the equal protection clause. Parties are the coalitions that follow from that stuff, not the traits themselves.
A plain reading of the Constitution, without looking for an excuse says, nope. No prohibition on partisan gerrymandering. Take Door Number 1 and partisan gerrymandering is really hard to prohibit.
But for the sake of argument, let's reach. And see what happens. Eric McGhee and coauthor whose name I won't bother to type because he didn't go to Berkeley decided to respond to Anthony Kennedy's previous statements on partisan gerrymandering. Kennedy was supposedly open to some prohibition if he had a standard. McGhee put together a measure-- the efficiency gap-- built on the concepts I gave you above. Why? We studied the same materials, with the same grad school advisors (truth in advertising...). His measure could, in principle, be used to create a standard for partisan gerrymandering, if there were such a thing as a prohibition on partisan gerrymandering.
OK, so we can measure the efficiency gap. How big of an efficiency gap is allowable? More importantly for someone at least attempting to make a good faith reading of the Constitution, from where in the text of the Constitution do we derive a standard for the precise level of efficiency gap that is constitutionally permissible?
Go ahead. Look for that passage. It ain't there.
You can measure the efficacy of a partisan gerrymander with McGhee's efficiency gap, and it's a good measure. I like it. You could, in principle, write a statutory prohibition on a gap above a certain level, and I'd support that! You could even write that into state constitutions, and I'd support that too.
But, if you think you have found the passage in the Constitution that tells you how big an efficiency gap the Constitution permits for redistricting plans, I think you might need reading glasses.
Or, more likely, some better check on your own cognitive biases.
And so, as we survey the critiques of the majority's reasoning, I will point out that none of the critiques of the majority follow Door Number 1. Most took Door Number 4, and even those that gestured towards Door Number 2 still focused primarily on the implications of partisan gerrymandering for democratic theory.
On those points, I cannot disagree with anyone who critiques partisan gerrymandering, provided that they don't make the mistakes that I spelled out earlier, because partisan gerrymandering is bad for democracy. There's just nothing in the Constitution about it, and finding a specific value to draw a line for McGhee's efficiency gap, while connecting that value to the Constitution itself... you can do that, but you wouldn't be making a constitutional argument. It's that last step-- connecting it to the Constitution-- where you're just bullshitting.
At the end of the day, the critiques of the majority opinion in Rucho are critiques of the Supreme Court for not stepping in to save democracy. Some criticize them for not finding a constitutional interpretation that would allow them to save democracy. All focus primarily on the normative critique because everyone I have seen who argues for the unconstitutionality of partisan gerrymandering begins with the premise that it is bad, then looks for a constitutional justification for the prohibition. None begin with the question separate from the normative implications of partisan gerrymandering.
In other words, they're doing the same thing the conservatives did on Obamacare. They are starting with the outcome, and then struggling to reverse-engineer an argument to get them there. That's not a recipe for guaranteed failure (see Door Number 2), but it is so fraught with cognitive errors that the risk of taking Door Number 3 by mistake is way too high.
As the goo-goos have. And I say this in a context in which I agree with them on the normative theory. This is the equivalent of a conservative telling the Republicans that he hates Obamacare, but no, really, it's constitutional and that their lawsuits are bullshit.
Nope. The Court got it right in Rucho. Partisan gerrymandering is bad. I'm on the record for that, in peer-reviewed publications. That doesn't make it unconstitutional, and the arguments being posed to the Court have been bad faith all along. They are reverse-engineered to get the goo-goos to their pre-determined outcome. So the Court called bullshit.
As with the Census. The feds have few true constitutional imperatives. One is the Census. A head-count. A simple head-count. There is value to additional information, and I'm a data junkie. However, there is a constitutional imperative for a head-count. The Trump administration, though, ordered a citizenship question added to the Census for a very specific reason-- to dissuade full participation, and then lied about their goals.
Creating systematic undercounts among specific populations has a lot of implications, including for district lines. You can increase the efficiency of Republican partisan gerrymanders without adding risk. That matters. Where this differs from partisan gerrymanders themselves is that there is a direct constitutional order to conduct a Census, and there is nothing in the Constitution about a citizenship question. So, if a citizenship question creates systematic undercounts, which it would, and that is the Trump administration's motive, which it is, and they lied, about it, which they did, because they lie about everything, then we have a problem.
The Trump administration began with a goal: find the citizenship question constitutionally permissible. Look for an argument. Their solution? Enforce voting rights. They were lying. Their goal was to create undercounts. The Court called them out on it.
The split here is really simple. The Constitution has a clear imperative on the Census, and the Trump administration is trying to create an undercount for partisan purposes. That is a direct violation of a specific constitutional imperative-- the directive to conduct a Census. The fact that it has horrendous implications for democratic theory if they get away with it is not why the Court blocked them. The Court blocked them because they are trying to pull some unconstitutional shenanigans and lying about it. Common Cause, on the other hand, was not conducting a good-faith reading of the 14th Amendment and saying, hey! You know, I think this partisan gerrymandering stuff is actually unconstitutional! They started with the goal of blocking partisan gerrymandering, and reverse-engineered their argument.
That reverse-engineering process.... That's more like what the Trump administration did on the Census, and what the Republicans did on Obamacare, than what New York was arguing in DoC v. New York. The problematic side is the side that is reverse-engineering its argument.
OK, technically, I just said that the problematic side is the lawyer because lawyers are mercenaries who reverse-engineer arguments for their clients, whoever their clients are. Um...
Moving on, what I mean is that...
Yeah, I did kind of mean that because...
No, I'm not getting off track**. I'm almost done here, and holy shit was this a long post. From a scholarly perspective, or a judicial perspective, the problematic side is the side that takes a reverse-engineered argument. Yes, lawyers reverse-engineer arguments because that's their job, but that's not my job, and the SCOTUS's job is to call bullshit on it because that's the side that made the cognitive errors, mistaking Door Number 3 for Door Number 2. Or maybe just lying, like the Trump administration. Because remember the first rule of politics in the current era: Donald J. Trump is always lying.
On partisan gerrymandering, the Court called bullshit on Common Cause because there is just nothing at all in the Constitution on it, regardless of how bad it clearly is for democracy, and on the Census, it's because there is a very clear directive.
Here's the test. Are you arguing about democracy, or the Constitution? If you think they are one and the same, then you really have missed the point.
*Goo-goo: Infantilizing term for "good government" advocate.
**Those of you who haven't taken classes from me, um... Sometimes, I just have to rant, and this just happens.