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The partisan redistricting debate moves to SCOTUS

Wednesday, Oct 4, 2017

* AP

In a case that could reshape American politics, the Supreme Court appeared split Tuesday on whether Wisconsin Republicans gave themselves an unfair advantage when they drew political maps to last a decade.

If Justice Anthony Kennedy, whose vote almost certainly controls the outcome, is prepared to join his liberal colleagues, the court could rule for the first time that districting plans that entrench one party’s control of a legislature or congressional delegation can violate the constitutional rights of the other party’s voters. That could lead to changes in political maps across the country.

* As we’ve already discussed, this case revolves around the “efficiency gap,” which, the SCOTUS blog explains, “looks at the number of votes ‘wasted’ in each election, either because they are cast for the losing candidate or because the victorious candidate did not need them to win”

(M)uch of [the court’s time] was spent in the weeds, on what Justice Stephen Breyer described as another “hard issue” in the case: If courts are going to get involved with partisan-gerrymandering cases, what are manageable standards that they can apply to evaluate the claims? Breyer offered Tseytlin a five-part test that looked at, among other things, whether one party controls the legislature and the redistricting process; whether the redistricting maps create “partisan asymmetry” – that is, they do not treat the different political parties equally; and whether that asymmetry is “persistent” and extreme. “I suspect,” Breyer told Tseytlin, that the test is manageable. […]

[Erin Murphy, arguing for the Wisconsin State Senate] picked up this theme, reminding the justices that the kinds of standards that the plaintiffs have proposed have identified “false positives” – districts that appear to be the result of gerrymandering but are not – 50% of the time. What, she asked rhetorically, are legislatures supposed to do when confronted with problems like these? […]

[Justice Elena Kagan] seemed to be on board with Breyer’s standard, but looked for reassurance that the courts would not be inundated with challenges to other redistricting maps in the future. Smith suggested a variety of measures that seemed to placate Kagan, but not Roberts, who complained that the kind of statistics-based predictions that Smith’s measures would call for had “been a very hazardous exercise” for the court in the past. Alito also complained about the “dozens of uncertainties” in the process that Smith was proposing.

* The potential for a large number of cases disputing whether a state’s map is in compliance is real. For example, there are strongly differing opinions on whether Illinois would be ruled out of compliance

(A)ccording to Nick Stephanopolous, a law professor and lawyer for Wisconsin Democrats, it would leave Madigan’s partisan cartography undisturbed.

“At this point, no, (the Wisconsin case would not affect Illinois), simply because the ‘efficiency gap’ isn’t big enough for Illinois,” he said.

* On the other hand

In 2012, [Illinois] Democratic House candidates got 52 percent of the vote statewide but captured 60 percent of the seats, report political scientist Kent Redfield of the University of Illinois at Springfield and policy consultant Cynthia Canary. In 2014, Democrats got 50.5 percent of the vote and 60 percent of the seats. This year, Madigan’s party again won 60 percent of the races.

That’s why Illinois Republicans may side with Wisconsin Democrats on one issue: partisan gerrymandering.

* From a Change Illinois fundraising e-mail…

Yesterday, the U.S. Supreme Court heard oral arguments in a landmark case that could change America’s political landscape and establish constitutional limits to partisan gerrymandering. If the Court establishes a new constitutional standard prohibiting partisan gerrymandering, this will apply nationwide and could be used to finally change Illinois seriously flawed redistricting process before new legislative maps are drawn after the 2020 census.

“Could” is the operative word there. Maybe, maybe not.

- Posted by Rich Miller        

12 Comments
  1. - Not Rich - Wednesday, Oct 4, 17 @ 1:43 pm:

    winners DRAW losers LITIGATE.. it is a founding principle of American government.


  2. - Anonymous - Wednesday, Oct 4, 17 @ 1:51 pm:

    Many people complain about Illinois’ maps, but the maps before the US Supreme Court are far worse. The ruling could easily declare Wisconsin’s gotta change, but in a way that means Illinois doesn’t.


  3. - So_Ill - Wednesday, Oct 4, 17 @ 1:54 pm:

    Nationally, this would help democrats a whole lot more than it would hurt them.


  4. - The Captain - Wednesday, Oct 4, 17 @ 1:57 pm:

    I think very highly of Redfield and Canary but adding up the total votes for State Rep and using that as the measurement has a major flaw, many races have no opponent even some that really should have been contested. For example they say that “In 2014, Democrats got 50.5 percent of the vote and 60 percent of the seats.” Fair, but look at the districts that had no opponent. For example John Bradley, Jerry Costello and Brandon Phelps all had no Republican opponent and Rauner won all of those districts by more than 30 points. The Republicans could have won any or all of those districts in a midterm election that was also a big Republican year locally and nationally. They didn’t win them so the Dems got 60% of the seats that year but this isn’t evidence of gerrymandering, it’s evidence of ineptitude.


  5. - COPN - Wednesday, Oct 4, 17 @ 2:23 pm:

    Hopefully the majority of the SC is looking for more than just a manageable standard and at least account for (1) certain demographics already being packed by geography and (2) equal protection rights don’t necessarily equate to a right to proportional partisanship in a state legislature.


  6. - Last Bull Moose - Wednesday, Oct 4, 17 @ 2:40 pm:

    I hope the Supreme Court stays out of this political issue. Membership in a political party does not make a person a member of a protected class.

    I advocate for 3 person districts like we had before the Cutback Amendment. Those are hard to Gerrymander.

    But I don’t want judges running this process. It damages their credibility.


  7. - JB13 - Wednesday, Oct 4, 17 @ 2:45 pm:

    Nothing quite like a gerrymandering discussion with Illinois Democrats.
    “C’mon, man, legislative maps don’t determine who wins. Well, except in Wisconsin.”
    “Then, give up control of the maps.”
    “No.”


  8. - FPJ - Wednesday, Oct 4, 17 @ 2:46 pm:

    A recent “explainer” in the Times goes into why Illinois (and New York) are kind of unique cases for this efficiency gap calculation. Both states have such concentrated populations centers that the political geography of urban Democrats and rural Republicans really throws the test for a loop. In fact, this test gives Illinois Republican a slight efficiency advantage!

    https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-math-of-gerrymandering-works-supreme-court.html


  9. - DuPage Saint - Wednesday, Oct 4, 17 @ 2:54 pm:

    Read that two of the three worst maps are Democrat and that Maryland is the most partisan (Democrat) map. And another issue brought up is that Democrats and Republicans do not necessarily stay Democrat or Republican.
    Still think some guy with a computer could drawn rather square or rectangular lines with the correct number of people in the district and also trying to c=keep counties and or towns in same district.


  10. - FPJ - Wednesday, Oct 4, 17 @ 2:54 pm:

    Honestly, the only way around the political geography issue is some kind of state-wide proportional representation system. That doesn’t seem to be a likely outcome any time soon.


  11. - Sue - Wednesday, Oct 4, 17 @ 4:10 pm:

    At least in Illinois- this would be Madigans worst nightmare


  12. - Lamont - Wednesday, Oct 4, 17 @ 7:54 pm:

    The simple, and obvious, solution is statewide proportional representation. And we need to do away with the onerous restrictions on parties not named “Democratic” and “Republican”. Jeez, it’s 2017 already.


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