Cutting-Edge Evidence and an Old-Fashioned Decision

I was very happy to see Jim Gardner’s guest post on the Pennsylvania Supreme Court’s decision striking down the state’s congressional plan. Jim has written several terrific articles on the state constitutional law of partisan gerrymandering, so I can’t think of a better commentator.

I just wanted to add a few observations to Jim’s excellent analysis. First, there is a disconnect in the decision between the evidence the court summarizes and the legal standard it then articulates. The evidence presented at trial was largely about the Pennsylvania plan’s partisan skew: how enormous it is compared to other maps, both in the state and nationwide; how such a large tilt undermines congressional representation; how the plan will continue to benefit Republicans under almost any electoral environment; and how the plan is more biased than hundreds of computer-simulated maps. The court’s test, though, has almost nothing to do with any of this material. Instead, it focuses on compliance with traditional redistricting criteria such as contiguity, compactness, and respect for political subdivisions. These criteria barely appear in the descriptive portion of the decision, yet suddenly leap to the forefront in the court’s legal analysis.

Second, there is also a disconnect between the criteria and the constitutional principle the court is trying to vindicate: namely, not “diluting the potency of an individual’s vote for candidates for elective office relative to that of other voters.” The court recognizes that “partisan gerrymandering dilutes the votes” of a party’s supporters “by placing [them] in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing).” But the court then endorses redistricting requirements that have only a tenuous relationship with vote dilution. After all, it is perfectly possible for votes to be diluted by districts that are contiguous, compact, and respectful of town and county boundaries. Likewise, ugly districts may not dilute any group members’ votes despite their unattractive appearance.

Third, what seems to be driving the court is not actually opposition to partisan gerrymandering but rather an older theory of representation that was ascendant in American politics prior to the one person, one vote revolution of the 1960s. Under this theory, which both Jim and I have written about, the point of electoral districts is to represent coherent geographic communities as effectively as possible in the legislature. Or in the court’s words: “[T]he greatest emphasis [is] on creating representational districts that . . . maintain the geographical and social cohesion of the communities in which people live and conduct the majority of their day-to-day affairs.” “When an individual is grouped with other members of his or her community in a congressional district for purposes of voting, the commonality of the interests shared with the other voters in the community [is respected].” Note that, under this approach, what is wrong with gerrymandering is not the unbridled pursuit of partisan advantage. Rather, it is the disruption of people’s underlying communities: districts’ splintering of communities that could have been kept whole, and their fusion of communities that could have remained distinct.

And fourth, almost as an aside, the court acknowledges at the end of its decision that compliance with traditional redistricting criteria might not stop vote dilution or partisan gerrymandering. “[T]here exists the possibility that advances in map drawing technology and analytical software can potentially allow mapmakers, in the future, to engineer congressional districting maps, which, although minimally comporting with these neutral ‘floor’ criteria, nevertheless operate to unfairly dilute the power of a particular group’s vote for a congressional representative.” The court may think this eventuality lies in the future, but it is very much with us already. Both in the Whitford case from Wisconsin and the LWVNC case from North Carolina, the mapmakers produced extreme partisan gerrymanders that nevertheless scored reasonably well on conventional metrics. If the Pennsylvania legislature manages to enact a remedial plan, I would expect it to follow the same strategy: to design a map that looks much prettier, but that preserves Republicans’ 13-5 advantage. The governor would presumably veto such a plan, meaning that the court still would not need to “address at this juncture the possibility of such future claims.” But the court’s day of reckoning with modern, aesthetically acceptable gerrymanders is probably coming sooner than it thinks.

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