The Consequences of Gerrymandering

I wrote yesterday about my findings in a recent paper about the causes of district plans’ partisan skews. In a nutshell: Full control of the redistricting process consistently benefits the party in charge. Courts, commissions, and divided governments don’t reliably favor either party. Greater black representation produces a small pro-Republican shift, which disappears if Democrats are responsible for redistricting. And greater urbanization also produces a small pro-Republican shift, but only at the state house level.

Today I want to talk about the consequences of district plans’ partisan tilts. In particular, how does a large efficiency gap (or partisan bias) affect the legislative representation that voters get? The below chart begins to answer this question. The x-axis shows the Democratic share of the statewide vote in congressional elections from 1972 to 2012. The y-axis shows the ideological midpoint of each state’s congressional delegation (where negative values are liberal and positive values are conservative). Separate curves are plotted for plans with large pro-Democratic efficiency gaps (>10%), large pro-Republican efficiency gaps (<-10%), and all other efficiency gaps.

It is obvious from the chart that, at least in competitive states, gerrymandering has an enormous impact on representation. Take a state where the congressional vote is evenly split between the parties. If this state has a large pro-Democratic efficiency gap, then its median House member is likely to have an ideal point around -0.2 (or somewhat liberal). If the state has an intermediate efficiency gap, then the ideological midpoint of its House delegation is likely to be near zero (or moderate). And if the state has a large pro-Republican efficiency gap, then its median House member is likely to have an ideal point close to 0.4 (or quite conservative). Thus without a single voter changing her mind, redistricting can shift the ideological midpoint of a House delegation by about 0.6, or roughly two standard deviations. The same electorate can be represented in Congress in completely different ways, depending on how the lines are drawn.

I won’t get into my regression analysis here, but it strongly confirms the story told by the chart. Both the efficiency gap and partisan bias are powerful drivers of congressional representation in every model. What this means, in my view, is that the damage of gerrymandering is not limited to discrepancies between votes cast and seats won. It extends, rather, to the voting records of the legislators who end up in office. Pro-Democratic gerrymanders result in House members who are too liberal for their constituents. Pro-Republican gerrymanders yield House members who are overly conservative. Either way, the basic idea that legislators should be aligned with the voters who elected them is severely compromised.


Quote of the Day—Trump Election Integrity Commission Edition

“I don’t know why this has fallen on my shoulders,…I’m just a very small old country boy from Arkansas in this bigger commission with Vice President Pence, and I’m just going to do the best I can, to be honest.”

–David Dunn, one of three new members of the Trump “Election Integrity” Commission, quoted in HuffPo’s Some Of Trump’s New Election Investigators Don’t Seem To Have Much Election Experience.


“Election Hackers Altered Voter Rolls, Stole Private Data, Officials Say”


The hacking of state and local election databases in 2016 was more extensive than previously reported, including at least one successful attempt to alter voter information, and the theft of thousands of voter records that contain private information like partial Social Security numbers, current and former officials tell TIME.

In one case, investigators found there had been a manipulation of voter data in a county database but the alterations were discovered and rectified, two sources familiar with the matter tell TIME. Investigators have not identified whether the hackers in that case were Russian agents.

This is a big deal.


“United Utah Party sues for access on special election ballot”

Deseret News:

A newly formed Utah political party filed a lawsuit Wednesday against the lieutenant governor’s office seeking to gain access to the ballot for the 3rd District special election to replace Rep. Jason Chaffetz, R-Utah.

The United Utah Party filed suit in U.S. District Court, lodging a complaint against Republican Lt. Gov. Spencer Cox regarding his order to call a special election, and requesting that Cox be prohibited from keeping the United Utah Party’s candidate from the ballot once the party’s bylaws are verified.


“Catastrophic Attack and Political Reform”


Had the Alexandria shooter had his way and murdered a score or more legislators on a baseball field, the country would have witnessed horrifying carnage–and, as Norm Ornstein has argued, it would have entered into genuine constitutional crisis. The slaughter of the members of one political party would have changed, in minutes, the balance of power in the federal government. A Killer’s Congress would have come into session for an extended time. Special elections don’t happen overnight, or within days or weeks.

It is hard to see how– by what exceptional displays of political leadership–the government in these conditions could re-establish its legitimacy. It would be exceptionally hard in the “best of times”. In a divisive, polarized politics, it is close to unimaginable.

As Ornstein points out, we cannot say that this miserable state of affairs could not have been anticipated. On 9/11, the Capitol only escaped a devastating attack because Flight 93’s passengers gave their lives to bring down the plane. We also cannot say that no thought was then given to reforms to protect the continuity and democratic integrity of government if its senior ranks were to be violently cut down. Ornstein joined with others to establish a Continuity of Government Commission, which then recommended measures for assuring in the event of catastrophe a functioning, constitutionally legitimate presidency, Congress and the Supreme Court. That was fourteen years ago.


Two Democratic Members of Trump “Election Integrity” Commission Want to Add Consideration of Russian Hacking of Election Systems

Boston Globe:

Two members of a presidential commission charged with investigating alleged voter fraud want the panel to focus on what could be the biggest fraudulent scheme of all: attempted Russian hacking of numerous state election systems.

The call, by the secretaries of state in New Hampshire and Maine, presents a potential change in direction for a special commission that has widely been seen as a political smoke screen to justify the president’s unfounded claims about widespread fraud by individual voters in places like New Hampshire and California…..

Kobach, a Republican who is the Kansas secretary of state and vice chairman of the commission, said the panel would examine the vulnerabilities that Russians exposed if the group wanted to go in that direction.

“In the initial descriptions of the commission, election security and the integrity of equipment and voter databases was not specifically described,” Kobach said. “But if it’s something the commission wants to discuss, we can.”

A spokesman for Vice President Mike Pence, chairman of the commission, referred questions to Kobach. Kobach said that he’s in regular contact with Pence and his staff about the group’s work.

Maybe these Democratic commissioners also want to study whether restrictions on voting such as strict voter identification laws suppress the vote.  I guess Kobach would go along “it it’s something the commission wants to discuss.”

President Trump named three more members of the Commission last night:  They appear to be Luis Borunda, Deputy Secretary of State of Maryland (appointed by Republican gov. Larry Hogan); Mark Rhodes, a county clerk from Wood County, WV (who won his reelection for office as a Democrat by 5 votes!), and David Dunn, who may have been a Democratic legislator in Arkansas [corrected].Thanks to Doug Chapin for helping to identify these folks. (If any of this is wrong I will update).


“Civil rights advocates: ‘Confidential’ documents undercut Kobach’s voting fraud claim”


Kansas election official is trying to hide materials that undercut his public claim that substantial numbers of noncitizens have registered to vote and that documentary proof-of-citizenship requirements are necessary to stop it, civil rights advocates contend in a court filing.

The American Civil Liberties Union obtained the materials as part of its federal civil lawsuit in Kansas challenging the state’s voter registration law that requires people to submit citizenship documents such as a birth certificate, naturalization papers or U.S. passport.

It asked a federal judge in a filing late Tuesday to remove the confidential designation that Kansas Secretary of State Kris Kobach placed on materials he was photographed taking into a November meeting with then President-elect Donald Trump, as well as a separate draft amendment to the National Voter Registration Act.

The ACLU wrote that Kobach has “made statements to the public, the Court, and to high officials including the President, suggesting that noncitizen registration fraud is a serious, widespread problem while simultaneously endeavoring to conceal documents that tell a different story and to avoid answering questions about those documents. Sunlight is the best disinfectant under the circumstances.”


Vanita Gupta: “It’s Time to Revive the Heart of the Voting Rights Act”

Vanita Gupta in The Root:

Instead of focusing on actual problems, like modern-day voting discrimination, however, the Trump administration is working to further undermine our democracy. One of Jeff Sessions’ first moves as attorney general was to withdraw the Department of Justice’s long-standing position that Texas had engaged in intentional discrimination in enacting its ID law. As the former head of DOJ’s Civil Rights Division, I’m proud of the Justice Department’s work under President Barack Obama to aggressively challenge restrictive voting laws across the country

President Donald Trump’s recently announced election commission, led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, is key to his administration’s anti-civil-rights mission. The naming of Kobach is deeply troubling—as reporter Ari Berman outlined last week in a must-read New York Times Magazine story (or as The Root did in May).

Needless to say, Kobach is no friend of efforts to expand the franchise. The commission itself is a farce, plain and simple, and focuses on a problem that doesn’t exist. Voter fraud is infinitesimally rare, as has been demonstrated by study after study. Trump’s absurd claim that millions voted illegally during the 2016 election—an election that he won—is both wrong and bizarre.


“U.S. Elections Systems Vulnerable, Lawmakers Told In Dueling Hearings”


Democrats on the Senate panel, however, are frustrated by DHS Secretary John Kelly’s unwillingness to disclose more detail about the states that were targeted or compromised last year. DHS acknowledges that Russia’s intelligence officers went after elections systems in 21 states, only two of which — Arizona and Illinois — have been officially confirmed.

Jeanette Mafra, acting director of DHS’ national protection and programs directorate, told senators that DHS must “build trust” with the state and local agencies it supports and that releasing names or details about them would ruin that by embarrassing them.

Vice Chairman Mark Warner, D-Va., complained that the official work of investigating and explaining Russia’s mischief last year was hamstrung by all the secrecy about what had been compromised.

“I understand the notion of victimization,” he said. “But I do not believe our country is made safer by holding this information back from the American public. I have no interest in trying to embarrass any state, but we’ve seen this too long in cyber … people try to sweep this under the rug and assuming it will all go away.”


The Causes of Gerrymandering

I just posted a new article on SSRN, The Causes and Consequences of Gerrymandering, that will soon be appearing in a terrific William & Mary Law Review symposium. The piece uses nearly fifty years of data at both the congressional and state house levels to analyze (1) the factors that are responsible for district plans’ partisan skews; and (2) the implications of these skews for legislative representation. I’ll talk about causes in this post and about consequences in another post tomorrow.

To start off, one common hypothesis is that institutional control of the redistricting process is related to plans’ partisan tilts. In other words, we might expect Democrats to design pro-Democratic plans, Republicans to craft pro-Republican maps, and other institutions to be more neutral. In my article, I find very strong support for this hypothesis. Controlling for other variables, unified Democratic government is associated with a significant pro-Democratic shift in the efficiency gap (and partisan bias), and unified Republican government is linked to a significant pro-Republican shift. But when commissions, courts, or divided governments are responsible for redistricting, there is no consistent movement in either party’s direction.

Next, one often hears the argument that greater minority representation benefits Republicans. The logic is that the districts that elect minority-preferred candidates tend to be heavily Democratic. So creating more of these districts inefficiently “packs” Democrats and assists Republicans in the rest of the state. I find little evidence for this claim in my piece. There is no relationship at all between Latino representation and the efficiency gap (or partisan bias). Greater black representation does yield a Republican advantage, but only a very small one: on the order of a percentage point as black seat share rises by a standard deviation. And even this effect evaporates when Democrats are in charge of redistricting (and avoid packing their supporters).

Still another explanation for plans’ partisan skews is political geography. Here the idea is that Democrats are heavily concentrated in cities while Republicans are more evenly dispersed in exurban and rural areas. Maps that reflect these spatial patterns will allegedly tilt in a Republican direction. I also find little support for this hypothesis in my article. The best available proxy for political geography, a state’s level of urbanization, is unrelated to the efficiency gap (or partisan bias) at the congressional level. And while there is a statistically significant link at the state house level, it is substantively small and mitigated by party control of the redistricting process.

Two last points: First, more academics who study redistricting should be doing this kind of work. For years, scholars have been obsessed with measuring partisan gerrymandering. As a result, there hasn’t been enough progress in understanding the drivers and implications of this activity. Second (and relatedly), my results did not change significantly when I substituted partisan bias for the efficiency gap in my models. I suspect they also would not change much if I used the mean-median difference, the difference between the parties’ average margins of victory, or any other gerrymandering metric. This is all the more reason for the academic debate to turn from measurement to other issues.


“Texas group that fueled Trump voter fraud claim scales back 2016 election audit”

Texas Tribune:

Just days after his victory, Trump caused a stir by claiming — without evidence — that he would have won the popular vote in addition to the Electoral College “if you deduct the millions of people who voted illegally.” Trump later confirmed the source for his claim had Texas ties: Gregg Phillips, a former Texas Health and Human Services Commission official who now works with True The Vote.

At the time, Phillips said his team had already verified more than 3 million non-citizen votes. When pressed for details, he said the group was still finalizing its audit. In January, Trump tweeted: “ Look forward to seeing final results.”

In March, Phillips told The Texas Tribune the final results were still forthcoming. But apparently, the audit is no longer taking shape.

“We knew that this was a project that would take millions, but the major funding commitments haven’t materialized,” Engelbrecht said in Tuesday’s video.

Neither Engelbrecht nor Phillips responded to interview requests this week.

A White House spokeswoman did not directly respond to True The Vote’s announcement, but told the Tribune in a statement: “President Trump has expressed concerns regarding possible voter fraud and he wants to ensure that the integrity of all elections, which are the cornerstone of our democracy, is preserved.”

The statement said Trump’s “Election Integrity Commission,” formed in May, would “assess the situation.”


von Spakovsky, Christian Adams to Be Offering Advice, Reports to President’s “Election Integrity” Commission


The Best Practices report follows President Donald J. Trump’s Executive Order on the Establishment of Presidential Advisory Commission on Election Integrity. PILF intends to contribute to the body’s future studies by offering these findings and suggestions in the near future.

Donald Palmer is also involved.




“Is North Carolina the Future of American Politics?”

Jason Zengerle for NYT magazine:

In just a few years, North Carolina Republicans have not just run quickly through the conservative policy checklist; they’ve tried to permanently skew the balance of power in the state in their favor, passing some of the most restrictive voting laws in the country and drawing some of the most egregiously gerrymandered congressional and state legislative districts in modern American politics (though their moves have repeatedly failed to pass muster with the courts). Cooper’s victory, and the blowback to H.B. 2 that preceded it, seemed to suggest a chastening of the party — until Republicans contested the election results with a series of baseless allegations of voter fraud and legal challenges that left the state in limbo for four weeks before McCrory finally conceded.

Then, before Cooper was even sworn in, the General Assembly — in which Republicans had retained their decisive majority in November — tried to strip him of many of his executive powers. Cooper, in turn, sued the Republican leaders of the Senate and the House of Representatives to gain back those powers. What began as a grudge match now looks more like a free-for-all — and nobody’s partisans, as the Air Horn Orchestra informed Cooper in March, are in the mood for compromise. “It’s more polarized and more acrimonious than I’ve ever seen,” Carter Wrenn, a veteran North Carolina Republican political consultant, told me. “And I’ve seen some pretty acrimonious politics,” he hastened to add. “I worked for Jesse Helms.”


“Some States Beat Supreme Court to Punch on Eliminating Gerrymanders”


California is the largest of a handful of states that are trying to minimize the partisanship in the almost invariably political act of drawing district lines. California has handed that task to the independent and politically balanced California Citizens Redistricting Commission, and Arizona has a somewhat similar commission. Florida has amended its Constitution to forbid partisanship in drawing new districts. Iowa has offloaded the job to the nonpartisan state agency that drafts bills and performs other services for legislators.

The trend has gained momentum in states like Oregon and Ohio, where voters have approved a new commission for redistricting for state seats — but not those in the House of Representatives — in 2021….

But if the impact of partisan gerrymandering is disputed, few doubt that the naked political calculations common in many states can be improved. In California, boundaries are drawn in open meetings, not behind closed doors, and are explained in a handbook. And the line drawers are not politicians but citizens who must write four essays, ace a 90-minute interview and clear a gantlet of background checks and ethics prohibitions to be considered for a seat.

The result, Mr. Forbes said, is that “there aren’t any crazy districts that grab a population that makes no sense.”


“Court may rule on partisan gerrymandering – but maybe not”

Lyle Denniston:

Although the court did not explain its willingness to schedule a hearing at the same time that it voted to block the lower court ruling in the meantime, its actions on Monday were not favorable to the challengers of the Wisconsin plan.

One of the factors that the court considers in putting a lower court ruling on hold is whether there is a fairly good chance that the lower court will be overturned, when a decision is made by the Justices.  It takes five votes to issue such a postponement.   On Monday, it was clear that these Justices favored that action, although the order did not name them explicitly; Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Anthony M. Kennedy, and Clarence Thomas….

In postponing until its hearing the issue of whether the court actually has jurisdiction to make a final decision for or against the partisan claim, the Justices did not say what that procedural hurdle might be.

Among the possibilities is that the question of whether a partisan gerrymander lawsuit can efen be filed is a question of whether the issue is “justiciable” – that is, capable of being decided by a court.  A non-justiciable dispute is beyond court authority.

There also are questions, in this particular case, on whether a court may hear a challenge to a redistricting plan based upon a claim of partisan gerrymandering if the challenge is statewide, and not district-by-district, and on whether the state’s Republican leaders had been denied any chance to defend their plan under the formula that the lower court had only disclosed in announcing its final decision.  Whether those are questions of “jurisdiction” is unclear.


Time to Say the Election Administrator’s Prayer About #GAO6 Election: Lord, Let This Election Not Be Close

No doubt, there’s a lot riding on the special election between Ossoff and Handel to replace Secretary of HHS Tom Price. Not only is it seen as a harbinger of 2018; some see the fate of Trumpcare resting on the results.

Meanwhile, the latest polls are extremely close. 

Add into that concerns over the election security of Georgia’s voter registration system (read this Kim Zetter piece and be very afraid), and an electronic voting system with no paper trail, making a recount not much of a recount.

Add in all the talk of voter fraud and voter suppression going around these days.

All of it is a recipe for crazy conspiracy theories and claims of foul play and chicanery should the election be very close.

It may get very, very ugly.

That’s why the Election Administrator’s prayer may be the best chance to avoid disaster.


WI Partisan Gerrymandering Case News/Analysis Roundup

In addition to my piece in The Atlantic (Justice Kennedy’s Beauty Pageant) on the Supreme Court’s decision to hear Gill v. Whitford, here’s more coverage/analysis:

Adam Liptak-NYT

Bob Barnes-WaPo

David Savage-LAT


Greg Stohr-Bloomberg

Pete Williams-NBC

Patrick Marley-Milwaukee Journal-Sentinel

Rich Wolf-USA Today

Ariane de Vogue and Daniella Diaz-CNN

Marcia Coyle-NLJ

Sam Levine-HuffPost

Brent Kendall-WSJ

Trevor Potter-The Hill (opinion)

Josh Douglas-CNN Opinion

Ian Millhiser-Think Progress

More to come.


“A pro-Trump group is using Obama’s voice out of context in radio ad for Georgia’s special election”


An outside group that supports President Donald Trump is running a radio ad in Atlanta ahead of Georgia’s special election Tuesday that takes the voice of former President Barack Obama out of context to make the argument that Democrats take black voters for granted.

Great America Alliance, a pro-Trump non-profit group that previously ran ads attacking former FBI director James Comey during his testimony, is running an ad that quotes Obama narrating his autobiographical book “Dreams From My Father.” The ad, however, does not mention that in the selected passage, Obama is actually quoting someone else who is speaking about the black community and Chicago politics before the early 1980s….
Eric Schultz, a senior adviser to President Obama, told CNN’s KFile: “This spot is a fraudulent use of President Obama’s voice. It is a shameful, indefensible tactic that should never be heard on the public airwaves. Deceptively using President Obama’s voice to suggest people sit out of the democratic process is a form of voter suppression and it not only signals weakness, it runs counter to our American values.”

“Georgia special election tweets traced to one source”


With Georgia’s special House election going down to the wire, it’s no shock that Twitter is saturated with Democrat Jon Ossoff and Republican Karen Handel. But what is surprising is just how much of the traffic traces to a single, identifiable source.

Accounts related to one entrepreneurial Trump supporter, Robert Shelton, a.k.a. @RobertsRooms, have flooded hashtags about the GA-06 election with anti-Ossoff and pro-Handel messaging….

Shelton, via Twitter, confirmed his network is working to promote Handel, but said it is a strictly personal project. He did not respond to questions about whether, or how much, he paid Twitter users to put out his messages.

“The only affiliation we or I have with Karen’s campaign is that I live in District 06 and prefer her to Jon,” Shelton wrote. The Handel campaign emphasized they have no ties.

“We have not contracted with Robert and he has no affiliation with this campaign,” said Kate Constantini, campaign spokeswoman for Handel.

Shelton said he has worked for other campaigns after the 2016 presidential election, including the New York City mayoral campaign of Michel Faulkner, who pivoted to run for NYC Comptroller in late May.

Shelton pitches his social media marketing to “America 1st” political candidates. In one promo, he boasts of having “Social Media WARRIORS In EVERY TOWN Across EVERY STATE” with a network to 5 million Twitter followers, and lists “in-house meme creation” among his services. One post indicates that he pays “retweeters.”


Bloomingburg: “Can Hasidic Village Survive Vote Fraud Scandal?”

The latest on Bloomingburg from The Forward:

Not least among the oddness is the saga of Rabiner, an early Hasidic pioneer in Bloomingburg.

A Hasidic man who moved to Bloomingburg in 2014, Rabiner won reelection to the village board in March and hasn’t been seen since.

Locals say he’s been around town. But Rabiner hasn’t shown up to a board meeting, or even been to the village office to pick up his checks….

At the time, Rabiner had been a village trustee for two years. He won an reelection officially uncontested in March, though Roemer ran a write-in campaign against him. The Times Herald-Record, an upstate paper that has covered the Bloomingburg saga closely, reported that Rabiner’s repeated absences were an issue at a village board meeting held days after Lamm’s guilty plea.

“It upsets me that he doesn’t come to the village meetings,” Mayor Russell Wood said, according to the paper. Wood said he had asked Rabiner to resign.

Rabiner did not respond to a message left on his phone.



“Book Explores How Lobbyists Fill a Void in Congress”

Roll Call:

If you bemoan lobbyists or the revolving door that spins between government service and K Street, blame Congress.

The shift on Capitol Hill to centralize much of the major policymaking in leadership offices, as opposed to committees, along with a reduction in legislative staff and their salaries has helped propel the revolving door in recent years, says Timothy LaPira, a James Madison University professor.

All that has increased demand for plugged-in K Street insiders, even as President Donald Trump has pledged to drain the swamp but has done little to do so.

“There’s a vacuum in Congress right now for that expertise, and we see not only lobbyists but particularly revolving-door lobbyists filling that vacuum,” said LaPira, who is out with a new book this month that offers fresh data on the lobbying industry. “And you’re going to get a less than ideal product.”

LaPira, one of the few academics to study K Street, and co-author Herschel Thomas of the University of Texas at Arlington have packed their book “Revolving Door Lobbying” with years of research on the connections between federal government service, both on the Hill and the executive branch, and lucrative careers downtown.

I just got a copy of this book and hope to write more about it soon.


“A Republican contractor’s database of nearly every voter was left exposed on the Internet for 12 days, researcher says”


A Republican contractor’s database of nearly every registered American voter was left vulnerable to theft on a public server for 12 days this month, according to a cybersecurity researcher who found and downloaded the trove of data.

The lapse in security was striking for putting at risk the identities, voting histories and views of voters across the political spectrum, with data drawn from a wide range of sources including social media, public government records and proprietary polling by political groups.

Chris Vickery, a risk analyst at cybersecurity firm UpGuard, said he found a spreadsheet of nearly 200 million Americans on a server run by Amazon’s cloud hosting business that was left without a password or any other protection. Anyone with Internet access who found the server could also have downloaded the entire file.

 The server contained data from Deep Root Analytics, a contractor to the Republican National Committee, which used Amazon Web Services for server storage.  Vickery said he came up on the server’s address as he scanned the Internet for unsecured databases.

“Justice Kennedy’s Beauty Pageant”

I have written this piece for The Atlantic on today’s decision to hear the Wisconsin partisan gerrymandering claim. It begins:

The partisan gerrymandering beauty pageant is returning to the Supreme Court next fall for a limited engagement for an audience of one: Justice Anthony Kennedy. Whether or not Kennedy sees something he likes will go a long way toward determining whether courts will pay a role in reining in some of the most partisan activity in American politics.


UPDATE ON STAY: Breaking: Supreme Court to Hear WI Gerrymandering Case, Gill v. Whitford, Next Term Analysis

[UPDATE: About an hour after the Court issued its order agreeing to hear this case, it issued a second order, on a 5-4 vote, granting a stay of the lower court order in this case. The four liberal Justices dissented. As I explained last night, 

Once the Court grants a hearing, the question will be whether the Court stays a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018. WI has asked for that lower court order to be put on hold until resolution of the case at the Supreme Court, and given the likely timing of things, granting the stay would almost certainly mean the old districts would have to be used for the 2018 elections no matter what the Supreme Court does, as there would be no chance to create new districts.

The granting or denial of a stay requires the Court to weigh many factors, but one of the biggest factors is likelihood of success on the merits. In other words, granting of a stay is a good (but not necessarily great) indication that the Supreme Court would be likely to reverse. That means the stay is a good indication the partisan gerrymander finding of the lower court would be reversed.

So this stay order raises a big question mark for those who think Court will use the case to rein in partisan gerrymandering.

Why did this order not come with the Court’s regular orders agreeing to hear the case? Perhaps not all the Justices had voted on the stay by the time the Court had finalized today’s order list.]

As expected, the Supreme Court has agreed to hear Gill v. Whitford next term, with a decision expected by a year from June. (Technically the Court “postponed jurisdiction” pending a hearing on the merits, but this has to do with the nature of this coming up on appeal, rather than a cert. petition, and the open question about whether partisan gerrymandering claims are justiciable.]

This case represents the last best chance for a Court to rein in excesses of partisan gerrymandering, while Justice Kennedy, who has been the swing vote on this issue, remains on the Court.  (I’ll post more about the merits on this question soon.)

Nothing is certain, but I expect that an order one way or the other on the stay will come by the end of the term.

Also notable is that the Court did not issue any order on the North Carolina partisan gerrymandering case, a follow on to what happened in NC after the lower court found the old lines were a racial gerrymander.  That case likely will be held for resolution in light of Gill, rather than set for full argument, but you never know.

Finally, the Court denied cert. in the Northeast Ohio Coalition for the Homeless v. Husted case, about private party standing to sue for violation of a certain provision of the Voting Rights Act barring officials from denying voter registration and voting to individuals because of minor errors on their voting form.

[This post has been updated.]


“Trump’s silence on Russian hacking hands Democrats new weapon”


Democrats are uniting behind a simple message about Russian hacking during the 2016 election: Donald Trump doesn’t care.

Even as the president lashes out at the series of Russia-related probes besieging his administration, Democrats say Trump has yet to express public concern about the underlying issue with striking implications for America’s democracy — the digital interference campaign that upended last year’s presidential race….

And while the White House received bipartisan praise for a cybersecurity executive order Trump signed in May, administration officials said the directive is aimed at broadly upgrading the government’s digital defenses, not thwarting future Russian election hacking.

Instead, Trump tapped a commission led by Vice President Mike Pence to investigate an issue that elections experts call vastly overblown — voter fraud, something the the president has baselessly alleged resulted in millions of illegal voters casting ballots for Hillary Clinton in November.


What to Watch for in WI Supreme Court Partisan Gerrymandering Order: Order on a Stay

As early as Monday morning, the Court may announce whether it will hear the appeal in Gill v. Whitford, concerning the constitutional challenge to Wisconsin legislative districting as a partisan gerrymander.

I’ll be writing more if/when the Court grants a hearing in the case (and I expect the grant of the hearing almost certainly, though not necessarily Monday).

But once the Court grants a hearing, the question will be whether the Court stays a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018. WI has asked for that lower court order to be put on hold until resolution of the case at the Supreme Court, and given the likely timing of things, granting the stay would almost certainly mean the old districts would have to be used for the 2018 elections no matter what the Supreme Court does, as there would be no chance to create new districts.

The granting or denial of a stay requires the Court to weigh many factors, but one of the biggest factors is likelihood of success on the merits. In other words, granting of a stay is a good (but not necessarily great) indication that the Supreme Court would be likely to reverse. That means the stay is a good indication the partisan gerrymander finding of the lower court would be reversed. And a decision to deny the stay (and require WI to draw new districts in the interim) would be a good indication that the lower court finding of a partisan gerrymander will stand (even if the Court does not agree with the particular analysis of the lower Court).

As with many of these things, I expect this comes down to what Justice Kennedy wants to do (assuming he is not retiring at the end of this term)

More tomorrow, if there is an order.


Senate Intelligence Committee Hearing: US Election Security: Russian Interventions and the Outlook for 2018 and Beyond


Senator Richard Burr (R-NC), Chairman of the Senate Select Committee on Intelligence, and Senator Mark Warner (D-VA), Vice Chairman of the Senate Select Committee on Intelligence, today announced that the Committee will hold an open hearing on June 21st to further examine Russia’s interference in the 2016 U.S. elections.  The hearing will feature two panels and will focus closely on Russia’s cyber efforts against our election systems in 2016, our response efforts, potential threats to our 2018 and 2020 elections, and how we are postured to protect against those threats.  The first panel will include expert witnesses from DHS and FBI to discuss the intelligence community’s unclassified assessment of the Russian intervention and US Government efforts to mitigate the ongoing threat.  The second panel will include witnesses from the Illinois State Board of Elections, the National Association of State Election Directors, and an expert on election security.



Hearing: US Election Security: Russian Interventions and the Outlook for 2018 and Beyond


  • Dr. Sam Liles, Acting Director, Office of Intelligence and Analysis Cyber Division, DHS
  • Brandon Wales, Director, National Protection and Programs Directorate Office of Cyber and Infrastructure Analysis, DHS
  • Bill Priestap, Assistant Director, Counterintelligence Division,  FBI
  • Michael Haas, Midwest Regional Representative, National Association of State Election Directors
  • Dr. J. Alex Halderman, Professor of Computer Science & Engineering, University of Michigan
  • Steve Sandvoss, Executive Director, Illinois State Board of Elections


When: Wednesday June 21st, 2017 at 9.30 am Eastern.

Where: Hart Senate Office Building Room 216


“FBI joins investigation at Karen Handel’s house”


Authorities were called to the neighborhood where [GA06 congressional candidate] Karen Handel lives in Roswell after suspicious envelopes were found in mailboxes Thursday afternoon.

Police say Roxburg Drive off Old Alabama Road was shut down for several hours while crews investigated.

At least five homes in the neighborhood received an envelope with a “white powdery substance” in it.

The FBI was called in to take the lead on the investigation.