(The case also raises a less probable First Amendment claim.) Even so, both in Veith and in Perry, Kennedy remained undeterred, declining to find the equal protection challenge beyond the judicial competence of the courts, or in technical legal jargon, a "non-justiciable political question," even as he also declined to articulate the governing standard. In each of the two subsequent cases, Veith and Perry, Anthony Kennedy was the controlling justice. Id. In light of the Supreme Court's ruling in Gill v. Whitford (2018), we propose two paths forward for establishing manageable standards to identify partisan gerrymanders. Either party's President might have to make concessions on who might be appointed to the Supreme Court). True, urban voters might tend to be more liberal, and coastal elites tend to hold divergent views from those dominant within in the great red center. Chief Justice Roberts is, of course, right that equal protection doesn't demand proportionality. District Court (2018-Present) Briefing Order (July 31, 2018) Joint Memorandum on Further Proceedings (August 15, 2018) Amended Complaint (September 14, 2018) Motion to Consolidate (September 14, 2018) Defendants' Reply Brief to Motion to Consolidate (September 26, 2018) Defendants' Response to Amended Complaint (October 1, 2018) During much of our early history, geography was a paramount consideration. Stephanopoulis and McGhee describe their methodology in considerable detail in an article titled Partisan Gerrymandering and the Efficiency Gap, published in the University of Chicago Law Review, and available here. Held: The plaintiffs have failed to demonstrate Article III standing. Although the Constitution's Framers did not mandate districted elections, they understood geography to affect our lives in ways myriad ways: influencing our professions, our religious practices, our family bonds, our sense of community, and fundamental aspects of how we lived and who we are are. Gill v. Whitford, 138 S.Ct. (A Republican President might, for example, be forced to relax his stance on gun control or tax policy; a Democratic President might be forced to relax her stance on any number of favored regulatory commitments.

Both features matter. Act 43 was adopted … To remove the distortion, the Republicans would have to hold 70% of the seats, even though that would undermine proportionality, giving 70% Republican seats for 60% votes (as would be possible by doubling the districts to ten). This could really shake things up! ?�§€:¢‹0ÂFB‘x$ !«�¤i@Ú�¤¹ŠH‘§È[EE1PL”ʅ⢖¡V¡6£ªQP�¨>ÔUÔ(j )�� �v`0�30-���X��: 6�� ��1`��w���qo#�E�i�,

(This avoids the problem motivating the 1842 Act, although it is arguably in tension with the wording of the 1967 Act.)
Justice White insisted upon proof that the political process consistently degrade the representation of the subordinate party (the Democrats) in the state as a whole. 795 0 obj <> endobj Beyond the measurement issues, there are other concerns, which roughly fall into three groupings: (1) legitimacy, (2) constitutional (and statutory) premises, and (3) endogeneity. h�bbd``b`�$[A���$���& V�`�΀d�@HL�bI��ĵ@" H�2012��q����` GO# Id. If the goal is to capture representational distortion based on per party votes cast, there are more intuitive approaches. Most likely this is owing to specific language in governing Supreme Court case law. The court ruled the plaintiffs had not demonstrated standing for the case in demonstration of harm. The theoretical contribution of Stephanopoulos and McGhee has played an important role throughout the Wisconsin districting challenge that gave rise to the Whitford case. (Special thanks to Alan Miller for helpful technical clarifications and illustrations. Per-party votes are aggregated and the percentage each party receives dictates how far down the party list each delegation goes. Justice Scalia, writing separately in Veith, went so far as to describe Justice Kennedy's approach as "not legally available." (The game is all the more complex when we add the layer of race, including the effect of Shelby County v. Holder (2015) on state obligations under the Voting Rights Act). Facebook; Twitter; Share; A group of Wisconsin residents challenged a 2011 state assembly redistricting plan as an unconstitutional partisan gerrymander. H�t�MN�0�����%�E�6�u�"Q�?Q`�ؓA��M�=y��"$%߼q�y&[m֛��2{N�m��M|�CD��o]������P�=z�oBeU��eH�t����ۧ����BL�������Z]IO�Ȟ��Ԇ��|����p{�/�ER1Y.����v�vO2��`VJ�������YGɆ�J���L�����z������! The EG approximates the difference between the percentage of wasted votes for the advantaged versus disadvantaged party as reflected in the difference in gained seats, while acknowledging what the authors refer to as the "winner's bonus." Alan is coauthor, with Christopher P. Chambers, Alan D. Miller, and Joel Sobel of an article, found here, which thoughtfully responds to the Stephanopoulos and McGhee law review article proposing the EG measure. %%EOF In a thoughtful National Review article, Kyle Sammin expressed the concern that a problem with EG is that within winner-take-all districted elections, voters do not cast their ballots based on the party's state's aggregate House delegation; instead, they vote based on the candidates running in their districts. 5768... States * * (The actual formula: "Efficiency Gap=Seat Margin - (2 x Vote Margin).") 2 v. WHITFORD GILL Syllabus . 0 ), #GillvWhitford #EqualProtection #PoliticalQuestionDoctrine #JusticeAnthonyKennedy #JusticeRuthBaderGinsburg #JusticeStephenBreyer #ChiefJusticeJohnRoberrts #JusticeElanaKagan #JusticeSoniaSotomayor #EfficiencyGap #NicholasStephanopoulis #EricMcGhee #JusticeAntoninScalia #PartisanBias #ProfessorThomasSchaller #ProfessorLarrySabado, © 2020 by Maxwell Stearns  Proudly created with Wix.com, Gill v. Whitford, Partisan Gerrymandering, and the "Efficiency Gap", © 2020 by Maxwell Stearns  Proudly created with.

Gill v. Whitford. h�b```�B�&``f`�s\`D�3K��q�pk�U���3�me�a�`{�~������0�*� �l�ٽ���Eپ20p|f��8ȑ�a�̾����'��5���_�wr��v���m�s��~" maqNvRܸP�ƅK��R�o2�7.l�;�&R��ʋ�,�q�P�3�m/��7"���|2�= �UV31^2�¹I��V���qy��50p40t0H�f��"�T�#!� L2C�`�T@�0! The EG measure is trying to get at this intuition without abandoning the pretense of geographical districting.

EG's third problem is endogeneity. Or, we could ask: assuming proportional party representation, as in parliamentary list voting, and given the per party votes cast, what would the outcome have been? The distortion arises through a series of practices commonly known as "cracking," "packing," and "stacking." We could, for example, directly compare the percentage of seats per party to the percentage of votes per party. hޤUmO�0�+�84�;���Z� particularized injury to their equal protection rights. ��`��rÊ��QA s��x�`P� }�% �Ҏ��b� 1916 (2018) 86 USLW 4415, 18 Cal. Take, for example, a five-district state, with three Republican and two Democratic districts, and with a 60/40 ratio of Republican to Democratic voters. Redistricting; View our extensive coverage of Gerrymandering at the Supreme Court. Geographical districting involves pulling together sufficient numbers of like-minded people, either to create a packed district, or to forge a simple majority district, with a process that too often resembles the childhood game of Twister. The specific question in this case was whether the redistricting plan, known as Act 43, intentionally and systematically diluted the voting strength of Democratic voters statewide in elections to the state legislature. No. Perhaps to avoid claiming otherwise, Stephanopoulis and McGhee have advanced a less intuitive distortion proxy. Argued October 3, 2017—Decided June 18, 2018.

And it is likely that subsequent statutes to the original 1842 Act, the most recent one enacted in 1967, would prohibit returning to winner-take-all at large House elections. Imagine that each party's candidates run on a list, but those chosen from each list are then assigned to previously dawn geographical districts, with proportionality disallowing the dominant party to sweep all seats. Published: July 3, 2019. Assuming the Court does so, it would have a generally consistent, if imperfect, measure by which to compare the fairness of electoral mapping that would presumably motivate state legislatures to avoid violations by districting within the permissible error range. EG measures a 10 percent distortion (60-50)-(2x(60-50))=-10 even though the result is precisely proportional. A popular measure to assess partisan gerrymanders is "partisan bias." Although I have some quibbles with the EG methodology, it's a plausible measure within the highly imperfect world of districted voting.

A final note: Justice Kennedy will not remain on the Court forever. The partisan bias measures is based on a stylized 50/50 measure, and with a different voting ratio, the measure risks under- or over-stating the effective distortion. The earliest practice governing House of Representative elections were also at large, but winner take all for the state as a whole, thereby allowing the dominant party to fence out the minority party, thus inviting the 1842 statutory reform. v. Whitford et al. The consequence is to "waste" more votes of the subordinate party, beyond the simple majorities needed to elect preferred representatives, and to waste fewer votes of the controlling party, spread across the minority party's densely packed districts. They are EG losers each and every time, whereas under list voting, whatever their voting percentage would translate to percentage representation. Wis. Oct 3, 2017 Tr. endstream endobj 796 0 obj <>/Metadata 101 0 R/PageLabels 784 0 R/Pages 786 0 R/StructTreeRoot 120 0 R/Type/Catalog>> endobj 797 0 obj <>/Font<>/ProcSet[/PDF/Text]>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 798 0 obj <>stream
Members of the Wisconsin Legislature are elected from single-member legislative districts. (5���h ��z %�� �' And it's a bit radical. If the Court accepts EG, it will further need to identify the percentage distortion that constitutes a constitutional violation. Gill v. Whitford, legal case in which the U.S. Supreme Court on June 18, 2018, vacated and remanded a U.S. district court decision that had struck down a redistricting plan of the Wisconsin state legislature as an unconstitutional political, or partisan, gerrymander. A more radical proportionality measure might break the duopoly, inviting credible third parties. Even so, Paul Smith, counsel for Appellee, had to defend against a claim of proportional representation at oral argument: "CHIEF JUSTICE ROBERTS: And if you need a convenient label for that approach, you can call it proportional representation, which has never been accepted as a political principle in the history of this country. Within parliamentary systems, voters vote on delegations as a whole. With actual party-list voting, much of this would be beside the point; there would be no need for districting, and thus no need for contiguity. #�+bp�D´�kbX#¹�@���51�rp@/�ȯ4��Ӥ�n��������ѓ��[Ҥ���"�!�_O\ѐ�jz�.N]6�5�3�������tZ��,���|��q�IO2(L(��u�γ|��b�%I&�������^0g�IJn{�5�t���������6j�=��r�dFGe5Os�� �*(��I�l�/��#�&��� V�[�+^��MYџ����ڡ�����!+��&+�E�=�YU7G��"Rl���w��.\û~��ᴇfVߊȂ�;��~��V�����Cs;g$�z� Wc"/[Ȯ��1����� ]�C#�ߡ��8�j+^}5c�Jdґ�Z�k@���C_���@{=�y�6V��l2T�+N�+��P+Ṅ3T�@�۝(���D�h��.D�����j/�`G�@q-c"�o��k�(��1[��-�X�>B�E��7���@(wI�u-A� k����Hq/�a G,�ٻ��\�nB"��ۄ`����u�e�6滶{�m@� of��l�j2r�u9O��5`�^��e�p1~��+}�K�#D_9��ȴ�Ȅf�0=*^�f�qݻ=��q����^��lk���wx! Thanks also to Mark Graber for some help on the early history of electoral districting. The tortured doctrinal history of partisan gerrymandering was played out in Davis v. Bandemer (1986), Veith v. The test only performs well in a two-party world.

Instead, Kennedy expressed the hope that a future litigant might someday bring to the Court a standard capable of meaningful measurement and application, perhaps one arising from new or developing technology.

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