Proportionality and the Oral Arguments — Part II

Yesterday, Nick offered some thoughts on the arguments in the Rucho and Benisek partisan gerrymandering cases, and several Justices’ fixation on whether all of this litigation is just a Trojan horse for achieving proportional representation. Nick’s post highlights the fact that none of the plaintiffs have asked for proportionality (and, indeed, most of the plaintiffs said as much at argument). And it points out that to the extent there are metrics related to outcome, those metrics lean toward symmetry instead.

But it’s just as important to note that none of the plaintiffs has suggested that outcome — no matter the baseline, or how it is measured — is dispositive. Given the Justices’ questions, you could be forgiven for misunderstanding that.

That is, none of the plaintiffs has suggested that a legislature stumbling upon a map could ever look up to find it unconstitutional because of its partisan content. And none of the plaintiffs has suggested that the Constitution requires every map to fit in a certain outcome range, much less peg a given percentage. The invidious intent to use the power of the state to punish voters for their political preferences is essential to each of the claims.

That isn’t just a fact to be waved away, or assumed in every case. It’s neither inherent to legislative activity nor inherent to redistricting. Legislatures routinely make properly political choices that don’t involve the intent to punish private citizens because of their partisan preferences. And there’s no other policy arena in which the Constitution allows legislators to set out to punish private citizens for their partisan preferences.

None of that has anything to do with whether outcomes are proportional. The trial courts in these cases did not rule based on proportionality. If these cases end up about proportional representation, it will be because that’s what (some of) the Justices want to discuss, not because that’s the premise of the claims themselves.

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