Amicus Brief in Whitford

I just had the pleasure of filing an amicus brief in the Supreme Court’s partisan gerrymandering case, Whitford, with all-stars Jonathan Katz, Gary King, Larry Sabato, and Sam Wang. The brief not only reflects the views of some of the best minds in the field; it is also likely to be the only brief that cites Shakespeare, the Bible, and John Rawls.

The brief makes three main points. First, the path for resolving this case is clear because the Court has trod it so many times before. In elections controversies and controversies on which elections ride, the Court has largely hewed to the same approach. It has announced what Justice Kennedy calls a “workable standard” while leaving the precise test to be ironed out by the lower courts.

Second, a workable standard is readily available: partisan symmetry. It relies on the simplest, most intuitive test for detecting discrimination: what would happen if the tables were turned? The roots of this standard are ancient, and it enjoys resounding support among social scientists.

Finally, despite partisan symmetry’s many merits, the brief nonetheless urges the Court to assure itself that the standard will lend itself to manageable tests going forward. The brief then identifies several criteria for making that judgment: Whatever test is used should be reliable and difficult to manipulate. The test should deploy actual election outcomes rather than hypothetical maps created by experts. Courts should be able to adapt the symmetry standard to different contexts and apply it without relying unduly on experts or displacing appropriate democratic judgments. Finally, the test should measure electoral opportunity rather than guarantee proportional victories and map cleanly onto the constitutional wrongs that animate redistricting law.

It was an honor to work with such extraordinary academics. Princeton’s Sam Wang gets special credit for the many hours he spent walking through the social science with me and framing arguments. This was also a chance to revisit the pleasures of writing a brief. If my new day job doesn’t work out….


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