Patterico's Pontifications

6/27/2019

SCOTUS Today

Filed under: Court Decisions,Law — DRJ @ 9:53 am



[Headlines from DRJ Beldar]

Beldar 1:

Breaking cosmically big news, so far just a headline at the WSJ: Supreme Court Declines to Set Limits on Political Gerrymandering: High court says such cases present political questions that courts can’t decide.

But here’s the full opinion in Rucho v. Common Cause. I’ll wait until DRJ or someone puts up a new post to comment in detail, but at a glance, from the official syllabus:

Partisan gerrymandering claims present political questions beyond the reach of the federal courts….

Any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” [citing Vieth v. Jubelirer‘s plurality opinion.]
….
None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable….

This — very significantly — is a majority opinion, written by Chief Justice Roberts, joined fully by Justices Thomas, Alito, Gorsuch & Kavanaugh. The liberal justices joined in Kagan’s dissent.

Biggest case of this term, by far. This is the new SCOTUS we’ve been waiting for, friends and neighbors.

Beldar 2:

And in the Census race question case, it looks like (finally) a win for the Trump Administration, albeit in a splintered opinion that will take some sorting through to figure out: Dep’t of Commerce v. New York (again from the syllabus):

The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that “has been open, widespread, and unchallenged since the early days of the Republic.”

As for the Commerce Secretary’s decision, it’s being remanded for reconsideration to see whether it was properly made, and that result was unanimous, but the instructions on what to do on remand appear to be rather fractured. There will be more litigation about this, in a hurry, before the 2020 Census is taken, but clearly there’s a path whereby the Trump Administration can get the question on the Census.

— DRJ

157 Responses to “SCOTUS Today”

  1. Posting headlines from an illegal alien now?

    This blog has really gone downhill.

    Dave (1bb933)

  2. Snarfle @ Dave … errr, MIPS!

    Beldar (fa637a)

  3. Re-printing here, on-topic, a further off-topic comment I left on the earlier post:

    —-

    If one wants a very detailed, very well balanced discussion of the Census decision, I highly recommend this post by Amy Howe on SCOTUSblog: Opinion Analysis: Court orders do-over on citizenship question in census case.

    Postpone the mailing date for the forms slightly; do the re-do with the kind of record and reasoned, well-written justification that Roberts demands; and the do-over is done, successfully.

    Is the Trump Administration capable of that sort of basic competency? That is an excellent question; Roberts stops just barely short of using the term “clown-car conspiracy” to describe the Administration’s initial effort.

    But they know who they have to satisfy, and it happens to be the Chief Justice, and the big question — may the citizenship question be asked? — has already been answered in the affirmative by him and the other four conservative Justices.

    Beldar (fa637a)

  4. Frankly, the census business seems to me like much ado about nothing.

    Obviously the Trump administration’s stated justification (to better enforce the Voting Rights Act) is a joke.

    I think few, if any, undocumented people will answer the question truthfully. Whether they do or not, what difference will it really make?

    As opponents claim, it may well discourage some illegals from responding, but the Census Bureau has to do evidence-based statistical corrections to all its raw data, so they will just correct for this like they do everything else.

    It seems like yet another bit of political kabuki, to gratify one pole of the political universe and antagonize the other.

    Dave (1bb933)

  5. we want a count of those who aren’t legally in this country, included with those who are, and the lack of a question, devalues citizenship,

    narciso (d1f714)

  6. Ha! You just think Beldar is posting in America. He is in France.

    DRJ (15874d)

  7. It seems like a perfectly reasonable question to ask on a census form. I just doubt we’ll be any better off for it, or learn anything we don’t already know.

    Dave (1bb933)

  8. @ Dave, who wrote (in a comment on the prior post):

    The gerrymandering case is really in Roberts’ wheelhouse of keeping the courts above politics.

    He hits this one out of the park (and demolishes the dissent too).

    I agree.

    Roberts is strategic, a chess-player using precedent instead of a chessboard and pieces. This is effectively a pawn he’s advanced, inexorably but almost unnoticed (impelled by an obscure provision in the Judiciary Act that gives the SCOTUS mandatory appellate jurisdiction, rather than discretionary certiorari jurisdiction), to the board’s farthest row to promote into a queen. It’s what us Rule of Law commenters have been arguing should happen — basically turning the conservative plurality from Vieth into a majority opinion — for a long, long time. And now, this opinion will dominate its row and file and diagonal on the subject of redistricting as a commendably clear 5/4 majority precedent.

    It’s comparable in significance, in terms of the functioning of the respective branches of government, pursuant to the separation of powers and the checks and balances of the Constitution, to Robert’s ringing line from Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007):

    The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

    Justice Kennedy’s wimp-out kept that from being part of a majority opinion. But that line is a still-advancing pawn, which when given one more nudge, one more vote, will likewise become a dominating queen.

    Beldar (fa637a)

  9. The right thing was to affirm the district map, so we dont waste more time.

    Narciso (30eb7e)

  10. I guarantee you that Roberts has been planning this gerrymandering decision for years and years. The mandatory appellate jurisdiction deprives him of the usual tool of denying certiorari (which has, by definition, no precedential effect), in theory making every ruling on these cases directly reviewable by SCOTUS, with precedent-setting effect. In practice, he’s been slaloming on a procedural snow, pivoting to pass back and forth between widely spaced gates, to avoid actually setting a real precedent until he had the vehicle he needed.

    And this was it: Two combined cases, one involving a Democrat-benefitting gerrymander, the other a Republican-benefitting gerrymander — symmetry that rings a-political, symmetry that adds credibility, symmetry that makes stare decisis work in favor of retaining this precedent.

    What a grand, slow plan. It’s like he’s an Ent from J.R.R. Tolkien’s writing.

    Beldar (fa637a)

  11. The federal government asks about citizenship and other topics every year in the American Community Survey (ACS). The ACS is sent to about 3.5 million homes and its results are extrapolated to the nation as a whole. The last time the cituzenship question was asked on a 10-year Census was 1950. Putting the question on the 2020 Census means we won’t have to extrapolate (guess as much).

    DRJ (15874d)

  12. It’s like he’s an Ent from J.R.R. Tolkien’s writing.

    Yup. And as the old childrens’ song goes, “and he looks like one too.”

    Bored Lawyer (998177)

  13. And of course, the grand, slow plan could only be actuated when Kennedy was replaced by someone more consistent, and if the seat vacated by Scalia were filled by someone more consistent. But the time for this decision finally was ripe.

    Beldar (fa637a)

  14. The headlines on the Census decision were initially that ‘Trump lost’ but the evolving consensus seems to be that ‘Trump lost but only for now.’

    DRJ (15874d)

  15. The point is, we’re under a deadline and all the lower courts have to do is tie this up in another legal case and there’s no question on the Census. It doesn’t matter what legal blather Roberts put in his decision if the result is to run out the clock.

    Its a loss for Trump.

    rcocean (1a839e)

  16. For the very practically minded, regarding the immediate effect of the gerrymandering decision on your world:

    Focus on holding, or taking, your party’s state legislature and governorship. This decision is a major shift of practical power from the federal courts back to the lowest level of grass-roots politics. If your party can’t hold these downstream legislative and executive branches at the state-government level, the laboratory of democracy, then your party is going to suffer nationally in the sausage-making of redistricting. Work on your party’s down-ballot races, not just the top-ballot national races.

    This “solution” to the “problem of gerrymandering” is no solution at all, but rather a frank recognition by the SCOTUS that redistricting is fundamentally a political process, and that you can’t take the politics out of politics without delegitimizing and trivializing the actual process of grass-roots democracy.

    This returns responsibility to elected officials — moreover, the elected officials who are closest to the grass-roots level, who can be turned out of office democratically only via a consistent series of state rep/senator district-by-district victories. Don’t look to the courts to bail your party out by having judges’ political guesswork override those elected representatives’ votes.

    Beldar (fa637a)

  17. — Mr. Chief Justice and may it please the Court: It is unconstitutional for the government of the United States to count the citizens of the United States.
    — Why is that, Learned Counsel?
    — Because illegal aliens will decline to be counted.
    — Amazing!

    nk (dbc370)

  18. Karnak answer (if someone wants to pad the tally in their Census Tract): Abandoned Houses or some of the same crap one sees at a municipal personnel office when there is a residency requirement (when I was hiring interns one summer, some kid from Indiana put down the address of a diner with no units in back or up top).

    urbanleftbehind (5eecdb)

  19. @ rcocean: How many petitions for expedited review have you worked on? What actually are the rules for getting an interlocutory appeal? Does it matter if there’s an injunction involved? Are there examples in which the SCOTUS has moved, on issues of national importance, with stunning alacrity? Does “Bush v. Gore” ring any bells with you? One needs a basic grasp of these sorts of details to make any meaningful, non-random predictions about timetables for litigation. Otherwise, one is blathering.

    Moreover: If the Trump Administration turns this path to victory they’ve been shown today into a loss, the person to blame is Donald J. Trump and his appointees.

    Beldar (fa637a)

  20. > This is the new SCOTUS we’ve been waiting for, friends and neighbors.

    The ability of a minority political party, having captured the legislature in one unusual election, to permanently entrench themselves by redrawing districts such that they cannot be voted out of office. This is surely democracy at its best, right?

    From my viewpoint, this means that the guarantee of a republican form of government is a lie, and that there is no way for the people to ensure the government represents them.

    aphrael (e0cdc9)

  21. The quotes from the gerrymander-ers cited in the opinion are pretty funny:

    As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.”

    Reminds of the Woody Hayes quote, when asked why he went for two points after a touchdown late in a game against Michigan, when his team was leading 44-14: “Because they wouldn’t let me go for three.”

    Dave (1bb933)

  22. > the elected officials who are closest to the grass-roots level, who can be turned out of office democratically only via a consistent series of state rep/senator district-by-district victories

    always presuming, of course, that they haven’t rigged the state district lines to make this impossible.

    aphrael (e0cdc9)

  23. An error in editing my #13 made me seem unfairly to criticize Justice Scalia. Horrors! I should have written:

    And of course, the grand, slow plan could only be actuated when Kennedy was replaced by someone more consistent, and if the seat vacated by Scalia were filled by someone equally consistent.

    Beldar (fa637a)

  24. @15. Yes, but the ‘deadline’ is more or less a ‘mechanical’ one, ‘self-imposed’ by the budget-and-bean-counter-brigade managing ink-and-paper-logistics at the GPO. If there’s a path to get it on the form, they’ll try again; that is, if the Trump team is organized– but that’s a big if.

    Such an endlessly entertaining administration; this show won’t be cancelled, kids.

    DCSCA (797bc0)

  25. @ aphrael (#22): Yes, you’re absolutely right! Those state reps and state senators write their own district boundaries, and gerrymander them!

    But this maximizes the ability of voters to meaningfully police that: At the most discrete, granular level, in the smallest-sized political subdivision in which your block-walking and GOTV efforts might actually matter, at the level you can most affect through your own participation in the process of picking the sausage-makers, all of that just became more important today than it was yesterday.

    It’s a good day for small-d, grass-roots democracy. It’s a bad day for judicial imperialists. I am doing my happy dance today.

    Beldar (fa637a)

  26. Sometimes I think Trump and some supporters only want to win if it comes via domination. It isn’t enough to succeed. They have to have enemies and use power to get even with them.

    DRJ (15874d)

  27. @21. Meh. Always remember: a buckeye is a useless nut.

    DCSCA (797bc0)

  28. > But this maximizes the ability of voters to meaningfully police that:

    How? How do you meaningfully police it and undo it once it’s been done? If your state doesn’t have an initiative system, there’s *nothing* you can do about it if it’s sufficiently effective.

    This is a good day for autocracies which wish to entrench themselves in power permanently, and it’s a terrible day for small-d grass-roots democracy.

    aphrael (e0cdc9)

  29. Modern map-drawers wouldn’t dream of using, as a proxy for how one’s likely to vote, one’s race. We have so much better data that focusing on that would be counterproductive: The GOP misses too many black or Latino Republicans that way. Modern map-drawers know how you’re likely to vote based on the way the people on your block are likely to vote, using data-modeling that is vastly more sophisticated and reality-based.

    That is now part of politics. Deal with it. Focus on your precinct and work your way upstream from there.

    Whole states flip. Texas flipped from one-party Dem to one-party Republican in the 1990s, capped by George W. Bush’s defeat of Ann Richards in 1994 and both chambers of the Texas Legislature turning Republican as well. But court involvement delayed the actual expression of that democratic result by well over a decade, keeping in place Martin Frost’s pro-Dem gerrymander of federal congressional districts long after Texas was comprehensively Republican. Can Texas Republicans count on the state not flipping back, though? Absolutely not. How to prevent that? Keep winning those state rep and state senate races!

    Beldar (fa637a)

  30. aphrael, it is democracy at its finest because this time, the unelected, black-robed exarchs declined to usurp authority from the people and their representatives.

    Dave (3c40e2)

  31. @26. Well, he does keep that letter from Nixon framed and hanging in the WH.

    History rhymes.

    DCSCA (797bc0)

  32. aphrael: You dream of a fair and just policeman/arbiter that doesn’t exist except through the composite expression of the voting public at the grass-roots level. Counter politics that you don’t like using politics, not the courts.

    Beldar (fa637a)

  33. @30. Less ‘the people,’ more ‘the parties,’ Dave.

    DCSCA (797bc0)

  34. > How to prevent that? Keep winning those state rep and state senate races!

    Keep misusing the power to draw districts in order to redraw them in ways that entrench you over the will of the majority of the state’s voters, you mean.

    That’s the inevitable outcome of this decision, except in states that have taken the power to draw district lines out of the hands of the legislature.

    aphrael (e0cdc9)

  35. > their representatives.

    my point is that this enables a tiny elite who do not actually represent the people to entrench themselves under the *pretense* that they elect the people, while changing the rules of the game (eg, the district borders) to prevent the people from ever electing a truly representative legislature.

    the leadership of both parties is now incentivized to do that everywhere they’re able to.

    aphrael (e0cdc9)

  36. You want a good day for small-d democracy? Trust in small-d democracy as actually practiced, not as theorized, not as idealized, and especially not as “guided” (meaning “overwritten”) by unelected judges who repeatedly decry their own fitness for that task, and who repeatedly dispute the political legitimacy of their own rulings.

    Beldar (fa637a)

  37. If by “tiny elite” you mean, in the aggregate, the duly elected state legislators and executives, that’s not a very tiny elite anymore, is it?

    As for them being “entrenched,” what accomplishes that is overriding democratically reached results, as when the federal courts give the likes of Sheila Jackson Lee an ironclad lifetime appointment to Congress based on her race. I repeat, I’ve lived through the un-entrenchment of Texas Democrats in the Texas Legislature and the Texas Lieutenant Governorship and Governorship. It was done by successful grass-roots politics, meaning winning of elections, by Texas Republicans.

    You don’t want small-d democracy. You want to be “protected” from it, but the courts are unfit for that task, and they do it badly, and their doing it destroys small-d democracy. The system can’t afford that kind of paternalism, my dear friend.

    Beldar (fa637a)

  38. Parties also try to control the courts for political power, aphrael. Why is that kind of politics ok but political redistricting isn’t?

    DRJ (15874d)

  39. We agree on this, from your #35, aphrael:

    [T]he leadership of both parties is now incentivized to do that [i.e., make political decisions during redistricting] everywhere they’re able to.

    And this statement has been true since the creation of the Republic. Now, however, the designed system of the Founding Fathers for checking this tendency — the actual practice of small-d democracy, through winning grass-roots elections — is now restored to power, at the expense of the practical power of the federal judiciary. Hallelujah!

    Beldar (fa637a)

  40. @35. The only bothersome element of this is the ‘major parties’ have been bleeding membership for many, many years; an increasing majority of voters, busy living their lives, are indies and find themselves subjected to choices foisted on them through a rats nest of entrenched electoral rules and regs. So they settle or just don’t vote and the tail wags the dog.

    DCSCA (797bc0)

  41. I mention states that have comprehensively flipped from one party’s dominance to the others.

    But there are also many, many states in which the voters have produced politically divided government — picking a GOP governor and state senate, but a Dem state house, for example. When that happens, then the district maps will be redrawn based on political compromises — horse-trading on a district-by-district, line-by-line basis. That, too, is the foreseeable product of the small-d democratic process as actually practiced at the polls.

    It’s sausage-making, and it’s ugly, and it’s the rawest form of politics. It’s yet another of democracy’s “sure it’s bad but it’s the least-worse solution” features.

    Beldar (fa637a)

  42. Read Roberts’ opinion if you haven’t, aphrael. Of course I’m biased because I agree with it, but I think he makes a very strong legal argument.

    Dave (3c40e2)

  43. @35. That’s a reasonably accurate assessment.

    DCSCA (797bc0)

  44. From #34, re this phrase in particular: “over the will of the majority of the state’s voters, you mean.”

    Why should the will of the majority of the state’s voters, as to who my state representative should be, control over what the majority of my state representative district’s voter’s actual votes? What an incredibly anti-democratic notion! Next you’ll want to abolish the Electoral College.

    Beldar (fa637a)

  45. from the Syllabus in the redistricting opinion:

    It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhapsit should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?”

    I think the plaintiffs were arguing fairness is minimization of the number of “wasted votes.” Which would be the same thing as achieving a greater number of competitive districts.

    Sammy Finkelman (102c75)

  46. Beldar, I agree with aphrael.
    The legislatures use gerrymandering to make sure small d democracy, with DTD canvassing and GOTV, does not hinder them. What this decision does is ensure that the current set of elites, whether Democratic or Republican, maintain their control no matter what happens.

    Kishnevi (20d062)

  47. @45. Here’s the thing, Sammy- you vote for X, they win; then a redistricting occurs and suddenly your represented by Y, who you did not nor would not have voted for, in a bordering district. Happened to the folks. It’s discouraging.

    DCSCA (797bc0)

  48. As Roberts points out there are a number of states that have decided to establish procedures to insulate districting from partisan manipulation. There are working examples of how to do it, if the political will exists, so it is hardly an intractable problem.

    Dave (3c40e2)

  49. > Why should the will of the majority of the state’s voters, as to who my state representative should be, control over what the majority of my state representative district’s voter’s actual votes?

    why should a small minority of the state’s voters have the power to elect representatives who will draw districts such that this small minority is guaranteed control of the legislature?

    *that’s* an absolutely undemocratic notion.

    I agree with the activists who, in support of california’s independent redistricting commission, insisted that democracy is about the voters choosing their legislators, NOT the legislators choosing their voters.

    the legislators choosing their voters is simply the use of power to create the pretense of democracy while in fact suborning it.

    aphrael (e0cdc9)

  50. DRJ, at 38: It isn’t.

    aphrael (e0cdc9)

  51. @46. Yes, and they are elite– a reasonable characterization- given the declining membership of the major parties.

    DCSCA (797bc0)

  52. > As Roberts points out there are a number of states that have decided to establish procedures to insulate districting from partisan manipulation. There are working examples of how to do it, if the political will exists, so it is hardly an intractable problem.

    In a state without an initiative system, there is no way to force a legislature elected by manipulated districts to undo the manipulation. And note that Roberts has already said he believes independent redistricting commissions to be unconstitutional.

    aphrael (e0cdc9)

  53. I rush to add (for other readers’ benefit, for I’m confident aphrael already knows) that aphrael and I have discussed this topic before, going back many years; and I would not only stipulate, but insist against any argument otherwise, that he holds his views in complete objective and subjective good faith; and that they are self-consistent views; and that he has likewise been consistent in holding and arguing them; and that many reasonable and well-intentioned people share them. We have many times agreed amiably to disagree, and I suspect we shall once again today.

    Beldar (fa637a)

  54. Why should the will of the majority of the state’s voters

    Except it’s not the will of the majority of the state’s voters, nor the will of your district’s voters, it’s the manipulation of party hierarchs trying to ensure that the choices offered you at the district level are limited to the choices they approve. They are almost literally choosing their own voters.

    Kishnevi (20d062)

  55. aphrael —

    Gerrymandering is not all that effctive against voting trands, and actually makes representatives more vulnerable in wave elections.

    I don’t believe a bunch of wise men in a room would make better and more durable decisions on districts. They would probably draw their statistically correct lines through neighborhoods that have historically been united in what they conceive as their common interest. Or, you would get some bipartisam commission that would work real hard at making life safer for all incumbents.

    Appalled (d07ae6)

  56. From the opinion:

    Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struckdown that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution.

    later, the opinion notes that Congress could also pass a law manadating that for Congressional districts.

    From the dissent:

    Old-time efforts, based on little more than guesses,sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world….While bygone mapmakers may have drafted three or four alternative districting plans, today’s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage (usually while still meeting traditional districting requirements). The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grand-father’s—let alone the Framers’—gerrymanders.

    I think what it does, mathematically, is prevent a small shift in opinion, if equally distributed, from affecting the composition of the legislature, but there is atipping point, beyond which tremendous changes occur.

    And sometimes, when it goes counter to the partisan balance in the state, there i alimit to what they can do. Te gerrymander of the Nww York State Senate which had been continiuous since about 1975, failed spectacularly in 2018. Through the miracle of gerrymandering the New York State Assembly had been close to 2.3 Democrat and the State Senate had been Reopublican for oer 40 years.

    (of course the Republicans, in this decsde, were relying mainly on one Democrat who voted with the Republicans, who had a district specially drawn for him, and on other Democrats who voted with Republicans on organziation matters. They were defeated in primaries after abandoning their affiliation.

    Sammy Finkelman (102c75)

  57. In a state without an initiative system, there is no way to force a legislature elected by manipulated districts to undo the manipulation.

    Of course there is. Win the next election; throw those guys out and put in others who will undo the manipulation (and replace it with their own manipulation). Politics.

    Beldar (fa637a)

  58. Legislators choosing their voters is actually the situation in the United Kingdom and maybe other Parliamentary democracies, where legislators do not have to have aconnection to teh district, and it;’s not all thst bad.

    It also happens in the United States, especially in United States Senate races, as with Robert F. Kennedy and Hillary Clinton.

    Sammy Finkelman (102c75)

  59. If you meant “force a legislature” other than at the polls, that’s true. Why is forcing a legislature to do something other than through the polls something we should promote? How is that politically legitimate?

    Beldar (fa637a)

  60. You want a good day for small-d democracy? Trust in small-d democracy as actually practiced, not as theorized, not as idealized, and especially not as “guided” (meaning “overwritten”) by unelected judges who repeatedly decry their own fitness for that task, and who repeatedly dispute the political legitimacy of their own rulings.

    I’m fine with keeping judges out of it, but when the popular vote is 54%/46% and the distribution of seats is 45%/55% it looks funny. There’s always confounding factors, but when I see repeatedly that a political party is winning seats at a far lower rate than they’re winning votes, and it’s easy to see that it’s caused through gerrymandering I start to doubt that the process is really reflecting the will of the voter.

    This has a strong negatives impact because safe districts are won in the primary, usually appealing to and getting out the vote of the most extreme parts of your party. So when it comes time to govern / vote decisions are made around how you’ll be attacked from your flank. Not what’s in the best interest of the majority of your district.

    The supreme court may not be the solution but this is definitely a problem.

    Time123 (cd2ff4)

  61. @55. That’s a reasonably accurate assessment, as well. Hard to vote out an old skunk when the powers that be offer up a party approved slate of younger skunks.

    DCSCA (797bc0)

  62. Appalled (d07ae6) — 6/27/2019 @ 12:11 pm

    Gerrymandering is not all that effctive against voting trands, and actually makes representatives more vulnerable in wave elections.

    There’s a certain percentage change where the effect of awave is exaggerated ratehr than prevented.

    I had an idea for every candidate in a previous election to propose a reapportionment (with candidates being able to join together) with the proposals weighted by the number of votes they got and then a winner picked at random by lottery. This would incentivize campaigns to be run in every district. the onl;y prolem is a very partissan gerrymander might win.

    Sammy Finkelman (102c75)

  63. Beldar: how is their entrenchment in power politically legitimate when they have specifically drawn the district borders to guarantee their re-election and make themselves untouchable, even though they only represent a third of the state?

    And how is it possible to force them to do anything at the polls when they have drawn borders to insulate themselves from such force?

    aphrael (e0cdc9)

  64. @ my likewise respected friend Kish (of whom everything I wrote in #54 is equally true), who wrote:

    They are almost literally choosing their own voters.

    Until those voters stop choosing them, which they may do, sometimes will do, and have often done, through their actual votes cast for state reps and state senators and state executives. That’s why we still bother to hold the elections and count the votes; that’s why the GOP should be fielding a candidate in every state rep and state senate race in every state, and the Dems should be doing likewise; that’s why the grass roots races still matter in an era of 24-hour news and instant polls and the politics of personal destruction. Overriding those grass-roots results is no longer the proper job of the federal courts.

    Beldar (fa637a)

  65. Beldar, at 54: thank you for that affirmation, and I would say the same about you. You and I disagree on this, but I believe your position is honestly held, and your views on this and related issues have always been consistent.

    I am happy to argue this with you because at the end of the day I believe your political positions to be held *with integrity*, and I have deep respect for you even when we disagree vehemently. :)

    aphrael (e0cdc9)

  66. In a state without an initiative system, there is no way to force a legislature elected by manipulated districts to undo the manipulation.

    Of course there is. Win the next election; throw those guys out and put in others who will undo the manipulation (and replace it with their own manipulation). Politics.

    Beldar (fa637a) — 6/27/2019 @ 12:15 pm

    Honest question. At what point does the disconnect between popular vote and number of seats tip over from “politics” to “unfair election”

    If a party has 90% of the votes in a state but only 10% of the seats is your answer still “Politics”?
    It if happens multiple elections in a row?

    I want to understand if this is a situation where there’s a philosophical disagreement where any outcome is fine. Or if this is a practical disagreement where You’re just not seeing the current examples as a problem.

    Time123 (cd2ff4)

  67. why should a small minority of the state’s voters have the power to elect representatives who will draw districts such that this small minority is guaranteed control of the legislature?

    I think you may have skipped a step or two here.

    Remind me how “a small minority of a state’s voters” gain control of both chambers of the state house and the governor’s mansion?

    The problem isn’t minority rule, it’s disproportionate majority representation. And as Roberts explains, the constitution guarantees political parties nothing in regard to proportional representation. In the early republic, congressional elections were often winner-take-all on a statewide basis.

    Dave (3c40e2)

  68. > I don’t believe a bunch of wise men in a room would make better and more durable decisions on districts. They would probably draw their statistically correct lines through neighborhoods that have historically been united in what they conceive as their common interest. Or, you would get some bipartisam commission that would work real hard at making life safer for all incumbents.

    Oddly, one of the visible changes when CA used an independent commission in 2010 was that the commission drew *multiple* districts which forced incumbents to run against each other. It was hilarious.

    > They would probably draw their statistically correct lines through neighborhoods that have historically been united in what they conceive as their common interest.

    As opposed to legislatures, which regularly draw lines that obviate common interest?

    It hardly seems like a reasonable objection to an independent commission, that it is bad because it might do the same things legislatures are already doing!

    [For context, I voted in favor of the initiative which set up the independent commission for state legislative races. I voted against the Congressional initiative on the grounds that we should see how the commission worked in state legislative district drawing before adopting it for Congressional district drawing.]

    aphrael (e0cdc9)

  69. Win the next election; throw those guys out and put in others who will undo the manipulation (and replace it with their own manipulation). Politics.

    The whole point of gerrymandering is to make sure “those guys” can’t be thrown out. IOW your solution to gerrymandering is possible only when gerrymandering is not a factor.

    Kishnevi (20d062)

  70. > Remind me how “a small minority of a state’s voters” gain control of both chambers of the state house and the governor’s mansion?

    you don’t need control of the governor’s mansion. looking at Sammy’s example up above, the republicans in the NY state senate were able to gerrymander themselves back into office even though the governor was a Democrat.

    If you look at the case before the Supreme Court:

    * NC has 13 congressional districts
    * The distribution of seats under the current gerrymander was 10/3 (in 2016) and 9/3 (in 2018; one seat is open because the election result was not certified due to blatant corruption).
    * the total votes cast for Republican candidates for Congress in 2018 in North Carolina was roughly 50%.

    Now, this isn’t the small minority case — it’s the case where a bare majority has engineered a large supermajority.

    But if federal courts are *incompetent to hear such cases at all*, which is what this decision says, then it’s not hard to imagine this situation:

    * a bare majority vote for one party wins a bare majority of the legislature
    * the bare majority in the legislature redraws the district maps to guarantee themselves a super majority
    * voting trends in the state change such that the party which used to have a bare majority can now only muster 1/3 of the votes in the state
    * but that 1/3 continues to elect a supermajority of the legislature because only the legislators selected by that 1/3 have the power to redraw the lines

    and this can continue for generations without any realistic way for the majority to oust their legislature.

    aphrael (e0cdc9)

  71. You guys keep pretending that some “tiny” number of “autocrats” can successfully “entrench themselves” indefinitely, despite the abundance of historical examples in which, through roots-up political changes, sometimes including explicit “throw out those gerrymandering SOBs!” campaigning, both parties have flipped that situation. The same thing which confers political legitimacy on state legislatures as line-drawers — that they’re duly elected by voters to perform a set of tasks which includes that one every decade, like clockwork — is the means by which abuses of power can be limited (see above, re divided governments and resulting compromises) or remedied.

    It’s a whole lot easier to target and defeat a particular state rep — even an incumbent whose benefiting from a gerrymander — than it is to remove a SCOTUS Justice from the bench. The friction and inertia and roadblocks that must be overcome are political ones, not judicially decreed ones. And that’s why the ultimate power must reside at the most distributed level, which is itself a systemic check on the state legislators’ power.

    Beldar (fa637a)

  72. *who’s benefitting, I meant to write in #72.

    Beldar (fa637a)

  73. When Baker v Carr was decided, Tennessee hadn’t reapportioned in more than sixty years. The *exact same* mechanisms you say should work to oust an entrenched political minority and make them redraw the districts should theoretically have worked on Tennessee, and yet they did not. Why would it be different here?

    > The same thing which confers political legitimacy on state legislatures as line-drawers — that they’re duly elected by voters to perform a set of tasks which includes that one every decade, like clockwork — is the means by which abuses of power can be limited

    What recourse does the rest of the state have when the line-drawers have lost legitimacy everywhere except their districts, who continue to re-elect them?

    aphrael (e0cdc9)

  74. @70. Yep. And layering it w/’rules and regs.,’ only enhances the entrenchment.

    DCSCA (797bc0)

  75. @ aphrael, re your hypothetical in #71: Why didn’t that happen in Texas? Why aren’t the Texas State House and Senate still controlled by Democrats? How did state rep and state senate districts gerrymandered to protect Democratic incumbents continue protecting Democratic incumbents?

    (There are at least a half-dozen other states I could give as examples, but Texas is, based on the size of its Congressional delegation and number of electoral votes, by far the most consequential in the last few decades.)

    Beldar (fa637a)

  76. (The case that this most resembles in my mind, incidentally, is Luther v. Borden).

    aphrael (e0cdc9)

  77. I wonder what theory a majority party uses to redraw district borders when the number of eligible voters registered as Unaffiliated exceeds the number of eligible voters registered as Republican or Democrat. Presumably, Unaffiliated voters lend a bit of extraordinary guesstimation as to how they would lean in any future elections, if as alleged, thumbing the scale is the ulterior purpose in redistricting.
    https://www.sos.state.co.us/pubs/elections/VoterRegNumbers/2019/May/VotersByPartyStatus.pdf

    Last election, Colorado voted to use a commission to propose redistricting maps. The districts must be compact, preserve communities of interest and “maximize the number of politically competitive districts.” We’ll see how that goes in practice.
    https://coloradosun.com/2019/03/22/states-redistricting-commissions-colorado/

    ColoComment (89c82f)

  78. So how about when the likes of gavin Newsom issue licenses to illegals knowing full sell they can be allowed to vote.

    Narciso (30eb7e)

  79. What recourse does the rest of the state have when the line-drawers have lost legitimacy everywhere except their districts, who continue to re-elect them?

    Elect, district by district, different wanna-be-line-drawers, until you have enough to throw out the line-drawers. Persuade voters that your party’s candidates, your party’s slate, is the better one and that they should switch their votes. Their votes — which those line-drawers can only guess at, and over which those line-drawers ultimately have no control.

    In short, win at grass-roots level politics over the long term.

    Beldar (fa637a)

  80. … the total votes cast for Republican candidates for Congress in 2018 in North Carolina was roughly 50%.

    That is a meaningless statistic. If, contra the Constitution, we abolished congressional districts and had a winner-take-all, or even some sort of proportionate, distribution of a state’s seats in Congress without regard to those districts, that statistic would become relevant. Until then, it’s affirmatively misleading, because we don’t use that standard of measurement under the Constitution.

    Beldar (fa637a)

  81. You’re arguing that federal courts should override actual district-by-district decisions of voters in order to apply a standard that is inconsistent with the Constitution.

    How is that supportive of small-d democracy or the Constitution?

    Beldar (fa637a)

  82. @ Kish, who wrote (#70):

    IOW your solution to gerrymandering is possible only when gerrymandering is not a factor.

    And yet the GOP controls both chambers of the Texas Legislature. Unpossible!

    Beldar (fa637a)

  83. We don’t have “one man/one vote/one time.” To maintain control, a party must keep winning grass-roots elections. Texas Democratic legislators stopped winning, or in anticipation thereof, some of them changed parties. Eventually they were in the minority; their efforts to entrench themselves ultimately failed. Voters drop in and out of the voting pool, and they also change — sometimes up and down the ballot, sometimes only in selected races. As long as we keep having the elections, their votes still do matter — not just in theory, but demonstrably so, in actual practice.

    When judges override those voters’ aggregated decisions, however, their votes don’t matter. It genuinely puzzles me why opponents of today’s result don’t get that.

    Beldar (fa637a)

  84. @79. Meh. They won’t be driving as much when the new 12 cent/gallon gas tax jump Jerry Brown pushed through hits July 1. CA’s roads rank 41st in the nation and need fixin’ but doubts linger that much of the $ willever hit the roads. Still, ‘redistricting’ stuck the retired folks w/Republican Randy ‘Duke’ Cunningham — a crook. Another redistricting stuck’em w/Republican Duncan Hunter– another crook. But then, dear ol’ Mom was a ‘Goldwater Girl’ and we remind her that payback is a b-tch. 😉

    DCSCA (797bc0)

  85. Exactly to the extent that a commission is “independent,” it is divorced from the desires, as they change over time from election to election, of the voters, and it is thereby politically illegitimate. You must assign this function to officeholders whom the voters can throw out in order to have political accountability.

    Beldar (fa637a)

  86. I don’t think the math works out for your “nightmare scenario” aphrael.

    Congressional districts in a state must have the same number of voters, or the courts throw a penalty flag for “1 man, 1 vote”. Today’s ruling explicitly affirms that as legitimate legal issue precisely because it’s unambiguous to enforce.

    Suppose each seat represents 100 voters, to keep the numbers small. A seat with a 1 vote majority is hardly safe, so let’s suppose the party drawing the lines aims for a 60-40 advantage in its districts. If they only have 1/3 of the voters, then for the 60 friendly voters in that district there are 120 opponents, of which they still have 80 to allocate. So for every five 60-40 districts they have to give the opponents four 100-0 districts. If they can “only” manage to pack the opposing districts 80-20, then it doesn’t work at all (they need *two* 80-20 opposing districts for every 60-40 friendly one).

    The majority can pad its numbers pretty easily but getting a majority of safe seats with a minority of voters is much less likely.

    Dave (3c40e2)

  87. Seth Moulton [Father, husband, Marine, Congressman, and candidate for President of the United States.]
    @sethmoulton
    Make no mistake: the partisan gerrymandering SCOTUS just allowed is also racial gerrymandering—a modern-day Jim Crow. Just look at what happened with Stacey Abrams last cycle in Georgia.
    __ _

    Comfortably Smug
    @ComfortablySmug
    How do you gerrymander a statewide race, you dumb ba***rd?
    __ _

    Chip Roy
    @chiproytx
    Replying to
    @sethmoulton
    What are you talking about? How in the hell do you gerrymander a state?
    __ _

    Doug Stafford
    @dougstafford
    Replying to
    @chiproytx

    Shhh let them talk.
    __ _

    living the dream🐖
    @winningisfunn
    The secret Republican plan of “sit back and let them talk” and we can take over the world is going better than expected!

    __

    harkin (58d012)

  88. @ Kish, who wrote (#70):
    IOW your solution to gerrymandering is possible only when gerrymandering is not a factor.
    And yet the GOP controls both chambers of the Texas Legislature. Unpossible!

    Beldar (fa637a) — 6/27/2019 @ 1:06 pm

    Gerrymandering, like many times of optimization, became much more powerful when people figured out how to use computers to do the optimization.

    Time123 (daab2f)

  89. trust them to show discretion,

    https://twitter.com/toddstarnes/status/1144336751596658688

    the same people who give Hezbollah and the Taliban a blue check,

    narciso (d1f714)

  90. @ Time123, re your #89: I agree with your line about computers. I don’t quite know it fits with the prior line of mine that you quoted, though.

    Beldar (fa637a)

  91. I don’t think the math works out for your “nightmare scenario” aphrael.

    Congressional districts in a state must have the same number of voters, or the courts throw a penalty flag for “1 man, 1 vote”. Today’s ruling explicitly affirms that as legitimate legal issue precisely because it’s unambiguous to enforce.

    Suppose each seat represents 100 voters, to keep the numbers small. A seat with a 1 vote majority is hardly safe, so let’s suppose the party drawing the lines aims for a 60-40 advantage in its districts. If they only have 1/3 of the voters, then for the 60 friendly voters in that district there are 120 opponents, of which they still have 80 to allocate. So for every five 60-40 districts they have to give the opponents four 100-0 districts. If they can “only” manage to pack the opposing districts 80-20, then it doesn’t work at all (they need *two* 80-20 opposing districts for every 60-40 friendly one).

    The majority can pad its numbers pretty easily but getting a majority of safe seats with a minority of voters is much less likely.

    Dave (3c40e2) — 6/27/2019 @ 1:26 pm

    Dave, here’s a counter example. 10 seats with 90 people each. Formatting isn’t working, but it’s pretty straightforward.

    Each district has 90 ppl
    in districts 1-8 you have 50 from team green and 40 from team purple. In district 90 you have 0 from team green and 90 from team purple. After the election team green is likely to have 9 out of 10 seats and 50% of the vote. Using this admittedly simple model I can adjust the totals to have 300 from team green and 600 from team purple and still have team green get more seats.

    Total Green Purple
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 0 90
    450 450

    Total Green Purple
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 50 40
    90 0 90
    90 0 90
    90 0 90
    90 0 90
    300 600

    Time123 (cd2ff4)

  92. Beldar @92, When democrats controlled Texas that level of computing power wasn’t available to draw districts. My point was that computer generated map optimization wasn’t an option at that time and the democrats ability to gerrymander wasn’t very good.

    Honest question. At what point does the disconnect between popular vote and number of seats tip over from “politics” to “unfair election”

    If a party has 90% of the votes in a state but only 10% of the seats is your answer still “Politics”?
    what if it happens multiple elections in a row?

    I want to understand if this is a situation where there’s a philosophical disagreement where any outcome is fine. Or if this is a practical disagreement where you’re just not seeing the current examples as a problem.

    I see it as problem that the current set of laws aren’t addressing. I agree judges can’t fix this. But I think it needs fixing.

    Time123 (cd2ff4)

  93. Dave, here’s a counter example.

    It’s not a counter-example.

    Your second scenario is basically the same as my first one, except the minority side has shakier 55-45 margins instead of the safer 60-40 I assumed.

    As I showed, if you can’t make 100-0 districts, though, it gets much harder.

    Dave (1bb933)

  94. The big problem with North Carolina is almost any redistricting plan that increases Democratic wins will weaken the chances of minority candidates winning office.

    Five thirty eight has a website for checking various redistricting algorithms.

    The “best” outcome under the VRA is to maximize “minority-majority” districts, which would create 3 such districts, a 4th white but democrat district and one that is up for grabs. But that one has a much worse set of gerrymandering districts.

    The best plan for Democrats would give them 8 seats, but only two risky “Minority coalition” districts. Which is actually worse for minority candidates than the actual Republican plan.

    Xmas (eafb47)

  95. Just put me in charge for one day.

    “Every electoral district shall be a quadrilateral, entirely filled in, as nearly a square as possible. You, the Party in Power, are allowed only to pick the center of the district, based on either population or geography, depending on which choice most nearly results in a quadrilateral, entirely filled in, as nearly as square as possible.”

    What’s so hard?

    nk (dbc370)

  96. Dave, my point was that in a close situation (the first one) it’s NOT hard to get a majority.
    The 2nd examples was one where the political dominate party is outnumbered 2 to 1. That’s a massive disparity.

    You’re right, it would be hard to use Gerrymandering to give democrats control of Alabama. But it would be easy for democrats to use Gerrymandering to make a slight blue state into a fortress where they were able to ignore the non-democratic voters.

    Time123 (daab2f)

  97. @ Time123: The Dems did indeed use computers in the 1990s, and not just to store and retrieve data, but to model results. Yes, computers have gotten even better at that since then. But that’s not what’s keeping Republicans in majority control now in Texas.

    Beldar (fa637a)

  98. @ Time123: It’s up to the voters to fix. No one else. It’s not a bug in the system. It is the system. You cannot take politics out of politics. It is pernicious and destructive to democracy to try. Don’t like it? Amend the Constitution; until then, go work your precinct, or if your precinct isn’t competitive, one that is. And spare me hypotheticals about abuses until you account for the real-world examples of grass roots elections turning red states into purple states into blue states and vice versa; I’m the opposite of persuaded by people who ignore those real-world examples and keep spouting hypotheticals.

    Beldar (fa637a)

  99. Gerrymandering has been around forever. I can remember all the Media elite chortling over how some California Democrat (Burton?) had gerrymandered the state so the D’s got 4-5 extra votes. So when did it suddenly become a matter of INJUSTICE?

    Oh that’s right. Just about the time the Republicans started doing the Gerrymandering. Then it became a matter for the Federal Courts because “Muh Constitution”.

    Notice the 4 liberals voted as bloc again. Just like they do on almost every issue that relates to D Power.

    rcocean (1a839e)

  100. As Roberts pointed out. Don’t like the Gerrymandering? Elect a new legislature. Or pass a state Constitutional amendment or law. Or go to Congress.

    rcocean (1a839e)

  101. Or course if it wasn’t for Trump, we wouldn’t have won the case 5-4. We would’ve lost 4-5 or even 3-6. Maybe if enough “Never trumpers” sabotage Trump in 2020, the D’s can win back the majority and get another shot at it.

    rcocean (1a839e)

  102. The best secret sauce in re redistricting by commission has been in Arizona. 3 hard Rs, 4 swings and 2 crazy Chicanos. Iowa us not the best test market given its relative homogeneity, but it did go from 3 – 1 R to 3- 1 Dem last November (and it presents the bizarro world VRA case – is it better to isolate a Steve King or crack up western IA as appendages to districts further east?).

    That said Moulton effed up – I never liked the excuse if skipping out on the whole ballot just because the opposite party has a decided advantage in the state lege district. Sheesh, get your guy in as dogcatcher or boards and build from that. I think the gerrymandering excuse is largely squawking from young warm weather state liberals who may just plain forgot or were not that into their reported candidate. The consequences like LI-HEAP and food assistance dont matter as much to a young Floridian, Texan, arizonan or even a young Atlantan or Nashvillian.

    urbanleftbehind (82d2e3)

  103. If a party has 90% of the votes in a state but only 10% of the seats is your answer still “Politics”?

    Your premise is impossible. The largest fraction of seats you can possibly have is double your vote fraction.

    So with 10% of the vote, the most you could have is 20% of the seats (and that’s assuming 1-vote majorities in every district you win, and 100% packing of the opponent’s voters).

    Dave (1bb933)

  104. Or course if it wasn’t for Trump, we wouldn’t have won the case 5-4.

    Who’s “we”, kemosabe? You, Jan Schakowsky and Chuey Garcia?

    nk (dbc370)

  105. President Cruz would have nominated fine justices.

    Dave (1bb933)

  106. IMO, the basic problem with the gerrymandering case is that nothing in the Constitution forbids it. An individual has a right to vote — not a right to have his or her vote counted with one group or another.

    Nowhere does the Constitution ascribe to proportional representation. What we have is a district system — my Congressman represents my district. I see nothing in the Constitution that gives me a right to have my vote put together with another group of like-minded people to vote in our preferred representative.

    And the whole concept of “wasted votes” has no basis in logic. In every election, there is a winner or loser. If you voted for the loser, your vote is “wasted” in some sense. Hard to see how that violates the Constitution.

    And for that matter, you can have wasted votes for the winner too. Let’s say in one district, someone wins 80-20. The winner got much more votes than he or she needed. Maybe 30% can claim their vote was “wasted” and they would prefer to be in the next district (where the vote was 51-49), so as to influence that other district.

    The bottom line is: “It’s not fair” is not a Constitutional argument. That is really all the other side had.

    Bored Lawyer (998177)

  107. There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”

    Bored Lawyer (998177)

  108. Further @ Time123: The architect, by the way, of the mid-1990s pro-Dem gerrymander of state rep & senate districts and federal congressional districts in Texas, by the way, was no one in the Texas Legislature, but rather, Congressman Martin Frost (D-Fort Worth), who already foresaw the slide of Texas from Dem-dominated to GOP-dominated. It was considered absolutely “state of the art” in its precision and raw political chutzpah for its decade. Its durability was a matter of national concern for the Democratic Party precisely because of Texas’ continued population growth ahead of national averages, with resulting growth in the total size of its congressional delegation and electors. Any suggestion that they were bumpkins who fell off the pumpkin truck just that morning at sunrise, would be badly misplaced.

    Beldar (fa637a)

  109. Exactly to the extent that a commission is “independent,” it is divorced from the desires, as they change over time from election to election, of the voters, and it is thereby politically illegitimate. You must assign this function to officeholders whom the voters can throw out in order to have political accountability.

    I disagree here. I see no problem if the legislature, either directly or through an amendment to the state constitution, delegates its power by establishing a set of rules and procedures that some other set of people (or a computer) must apply to do the job.

    That delegation of authority is itself a political decision, and if it doesn’t reflect the desires of the electorate, they can replace the people who made it.

    I think legislative districts that are perceived as equitable by both sides are preferable if they can be achieved.

    Dave (1bb933)

  110. (My “by the ways” in #110 met each other coming and going. Sorry; not good prose.)

    Beldar (fa637a)

  111. If the legislators retain the power to unseat the “commissioners” or whatever they call them, I’d have no quibble. But if they retain that power, the commissioners aren’t really very independent, are they?

    And if the legislators don’t retain the power to unseat the commissioners, then neither the legislators nor the commissioners are politically accountable to voters for redistricting. Lack of political accountability is a defining characteristic of despotism.

    Paraphrasing Roberts: The way to show you’re in favor of small-d democracy is to actually support the results of small-d democracy.

    Beldar (fa637a)

  112. I concur with Dave – though there will be temporal lags with regard to the exact degree that the delegated authority will reflect the will of the voters. The fact that today is basically only a beginning at SCOTUS reflects that reality.

    urbanleftbehind (82d2e3)

  113. As Marines say, about their beloved Marine Corps: Embrace the suck.

    Beldar (fa637a)

  114. you’re naïve if you think the brennan center, and the aclu will not keep pushing so these district maps are not certified by the time of the primaries, it’s too big a prize,

    narciso (d1f714)

  115. I think legislative districts that are perceived as equitable by both sides are preferable if they can be achieved.

    Oh, they can be. And they have the advantage of depriving the state-wide minority party of the campaign argument during the next election that the state-wide majority’s party is misusing its redistricting powers — quel horreur, we are shocked to even think that there might be gambling at Rick’s (now please hand me my winnings).

    However: Real-world politicians don’t give much weight to that calculation in their overall matrix. Words never heard in a state legislature, regardless of which party controls it: “Hey, above all guys, even at the risk of imperiling our own party’s current majority and, gulp, my job, let’s go out of our way to redistrict in a way that immunizes us from criticism for ‘playing politics with redistricting!'”

    One can make an argument, as aphrael and others have done, that the gerrymander should produce a result in which congressional representation is proportionate to the state-wide total vote won by each party’s candidate: If there are ten districts and 40% of the statewide vote for Congressional seats is won by Democrats, ten Democrats ought to have four seats.”

    But who says that’s the way the process should be weighted? FiveThirtyEight.com? Some general sense of propriety or a desire to avoid partisan conflict?

    If you’ll excuse me, I’ll go instead with — you guessed it — the Constitution, which says we have congressional districts, each of which holds a separate election. Yes, this system virtually guarantees continual controversy over redistricting; but it makes the actors in the system politically accountable, which can moderate their abuses or even replace them outright. It’s the worst possible system, except for every other possible system.

    Beldar (fa637a)

  116. *”the [not “ten”] Democrats ought to have four seats,” I meant to write in #117.

    Beldar (fa637a)

  117. If the legislators retain the power to unseat the “commissioners” or whatever they call them, I’d have no quibble. But if they retain that power, the commissioners aren’t really very independent, are they?

    And if the legislators don’t retain the power to unseat the commissioners, then neither the legislators nor the commissioners are politically accountable to voters for redistricting. Lack of political accountability is a defining characteristic of despotism.

    I guess I’m thinking of a mechanical process where all the judgment calls are made ahead of time when the legislature lays out the prescription to be followed. A corollary is that it will be possible to verify, from the result, that all the prescribed procedures were, in fact, followed, and all required criteria are satisfied.

    The apportionment of seats to states after a census is a good (although much simpler) model. The rules are laid out ahead of time, you turn the crank, and it’s done.

    Another workable model which I think I read about some states using is that a computer or commission produces a “short list” of options, all near the median of the scale of partisan advantage, according to specified statistical criteria, and the legislature chooses one of them. This allows a final “sign-off” by the legislature, but avoids the sorts of outliers that have triggered court cases.

    Dave (1bb933)

  118. As Marines say, about their beloved Marine Corps: Embrace the suck.

    The motto of my first raiding guild was: Suck less.

    Words to live by, in either case.

    Dave (1bb933)

  119. Dave (1bb933) — 6/27/2019 @ 4:08 pm

    The apportionment of seats to states after a census is a good (although much simpler) model. The rules are laid out ahead of time, you turn the crank, and it’s done.

    They weren;t laid out after the 120 Census and a reapportionment wasn’t done. Fiinally about 1929 Congress laid down rules. Through 1911, the membership of the House had always been increaed to anumber so that no (or few states) lost a seat. They picked amethid and then a number so that no one wod lose a seat. But a decision was ade to leave it at 435 in 1911. I’m not sure that is actually correct that adecision was made then.

    Two numbers not in the constitution but which everybody – well lose to everybody adheres to now:

    The number of members of the U.S. House of Represenatives and the number of Justices on the United States Supreme Court.

    Another workable model which I think I read about some states using is that a computer or commission produces a “short list” of options, all near the median of the scale of partisan advantage, according to specified statistical criteria, and the legislature chooses one of them. This allows a final “sign-off” by the legislature, but avoids the sorts of outliers that have triggered court cases.

    In that case, the procedure is a rule of the legislature.

    Sammy Finkelman (4eddd7)

  120. 108. The people who tally wasted votes, count votes wasted both for the loser and the winner and see which political party has more of them.

    They measure the degree of partisan gerrymandering by the excess of that figure for one party versus the other.

    Sammy Finkelman (4eddd7)

  121. In that case, the procedure is a rule of the legislature.

    It could be, but it could also be a law or an amendment.

    A rule is very easy for a transient legislative majority to change, which may be undesirable.

    Dave (1bb933)

  122. Who’s “we”, kemosabe? You, Jan Schakowsky and Chuey Garcia?

    And your point is what? Or is this just snark?

    rcocean (1a839e)

  123. President Cruz would have nominated fine justices.

    That’s nice. Except the Never trumpers were supporting the 3rd party or Egg McMuffin or writing in their wives on the ballot. Or telling Trump to quit in October.

    The one thing they weren’t doing is fighting for Trump so he could get elected in nominate Gorsuch.

    rcocean (1a839e)

  124. Cruz wasn’t the R nominee in August 2016. And the “Never trumpers” didn’t support him. They were neutral or supported Hillary. Neither position would have elected Trump and gotten us Gorsuch. Instead, it would have gotten us Garland.

    IRC, George Will said that was OK – after all he said, the SCOTUS is only 1/3 of the Government!

    rcocean (1a839e)

  125. Not Garland. Duh. He’s sixty-six, which is a clear tip-off that his nomination by Obama was never intended to be more than a gambit for pure political show. If Hillary had won, she’d have picked more Kagans — young, healthy, reliably progressive.

    Trump instead has made his SCOTUS picks from the list he committed to follow as the price for Ted Cruz’ full-throated endorsement after the 2016 GOP convention. I credit Trump with sticking to the list. Doing otherwise would have been stupid, but hey, that hasn’t stopped him very often.

    Beldar (fa637a)

  126. You’re absolutely right, Appalled. He’s really kind of the Emily Litella of the blog now: “What’s all this I hear about a baseball batter being out when he gets three trikes? What should the number of pedal-driven vehicles or their respective wheels have to do with whether a batter is out or gets to go to first base? Why, in my day –” [handed clarification] “– Oh! Well, that’s different. Never mind.”

    Beldar (fa637a)

  127. > my Congressman represents my district

    and your district has been deliberately shaped to produce a certain result. does that not bother you?

    aphrael (e0cdc9)

  128. > I’ll go instead with — you guessed it — the Constitution, which says we have congressional districts, each of which holds a separate election

    does the Constitution say we have Congressional districts? I don’t see a requirement for districts in Article I.

    The use of single-member districts for congress has been mandated by *Congressionally passed legislation* since the middle of the nineteenth century. It is not constitutionally required.

    aphrael (e0cdc9)

  129. “President Cruz would have nominated fine justices.”
    Dave (1bb933) — 6/27/2019 @ 3:26 pm

    So would’ve President Josiah Bartlet on teevee. Now, what is the one thing President Cruz and President Bartlet have in common?

    Munroe (df9855)

  130. @ narciso, who wrote (#116):

    you’re naïve if you think the brennan center, and the aclu will not keep pushing so these district maps are not certified by the time of the primaries, it’s too big a prize, [sic]

    No, sir, it is you who are naive. This decision means that a complaint filed in federal court challenging a redistricting map on grounds of excessive partisanship will be summarily dismissed within a matter of days.

    They will still pursue litigation under the Voting Rights Act of 1965, but it too isn’t what it used to be in the era of the Roberts Court, and that’s likely to become even much more true in the coming few years as “The way to end discrimination on the basis of race is to stop discriminating on the basis of race” moves from ringing plurality to majority status.

    Beldar (fa637a)

  131. > > … the total votes cast for Republican candidates for Congress in 2018 in North Carolina was roughly 50%.

    > That is a meaningless statistic. If, contra the Constitution, we abolished congressional districts and had a winner-take-all, or even some sort of proportionate, distribution of a state’s seats in Congress without regard to those districts, that statistic would become relevant. Until then, it’s affirmatively misleading, because we don’t use that standard of measurement under the Constitution.

    My argument is basically this: when it’s possible for the legislature to engineer the re-election of the majority-of-the-legislature party by drawing district lines to create that result, even though the majority of *actual votes cast in the election* are for the other party, the majority-in-the-legislature party is deliberately using the mechanics of the system to interfere with the governance of the state according to the will of the majority of the state’s voters.

    in that case, the majority-of-the-legislature elected-by-a-minority-of-voters is using district lines to create the *appearance* of responsibility to the will of the governed while actually interfering with that responsibility.

    you don’t like my way of measuring whether or not that’s being done. what metric would you use?

    or do you think it’s simply impossible for the government to be captured by an electoral minority who then use the power of the state to entrench themselves in power despite the will of the electoral majority?

    i mean, i read you as basically saying: if the legislature was elected by voters, *even if the legislature drew boundaries so that a small percentage of voters could elect them over the will of the overwhelming majority of voters*, then they represent the voters.

    is that an accurate summation of your view?

    aphrael (e0cdc9)

  132. > Why didn’t that happen in Texas?

    I don’t know.

    Why were the voters of Tennessee unable to force a redistricting for more than half a century without court intervention?

    What keeps the same result from happening with carefully gerrymandered political districts?

    aphrael (e0cdc9)

  133. Now, what is the one thing President Cruz and President Bartlet have in common?

    They never performed oral sex on Vladimir Putin in front of teevee cameras?

    Dave (1bb933)

  134. > One can make an argument, as aphrael and others have done, that the gerrymander should produce a result in which congressional representation is proportionate to the state-wide total vote won by each party’s candidate: If there are ten districts and 40% of the statewide vote for Congressional seats is won by Democrats, ten Democrats ought to have four seats.”

    Honestly, what I *really* want in terms of district line drawing are districts which follow normal geographic borders and preserve communities of interest, without taking into account partisan representation *at all*. I would support a ban on considering previous voting records and/or partisan registration statistics when drawing district lines.

    aphrael (e0cdc9)

  135. > but it makes the actors in the system politically accountable

    in a lot of ways, I think this is the gist of our disagreement.

    You think that drawing of district lines by legislators guarantees political accountability.

    I think that drawing of district lines by legislators provides the legislators with a mechanism whereby they can insulate themselves from political accountability.

    aphrael (e0cdc9)

  136. To use another real world example, the 1970s redistricting of the New York State Senate, combined with an agreement between the two houses of the legislature that each house could handle its own redistricting, preserved a republican majority in the state Senate from 1973 until 2009 despite the collapse of the state Republican party.

    This was a legislature carefully crafting lines so that a shrinking minority of the state’s voters could control a legislative body over the objection of the majority of the state’s voters … for close to forty years.

    aphrael (e0cdc9)

  137. Switching briefly to the census case:

    it looks to me like the majority of the court said: the enumeration clause allows this, the census act allows this, the proferred reason has a reasonable basis in evidence. meanwhile, a *different* majority, sharing only Roberts with the first majority, said: but the proferred reason is obviously a pretext.

    I think it’s pretty clear that all the administration has to do is, by whatever deadline they have for printing things, provide Roberts with a reasonably evidence-based non-pretextual reason and they’re good to go.

    I also doubt the administration has the competence to do that.

    Thomas’ dissent notwithstanding, it’s nice to see the court calling the administration on pretexts — the APA’s rules for basing policy changes in evidence not only exist for a reason, they were commanded by Congress.

    aphrael (e0cdc9)

  138. > As Roberts pointed out. Don’t like the Gerrymandering? Elect a new legislature. Or pass a state Constitutional amendment or law. Or go to Congress.

    Electing a new legislature may be impossible on a quarter-century time horizon due to the effects of the gerrymandering in question.

    In states without an initiative system, which is a majority of the states, passing a state constitutional amendment or law requires the assent of the state legislature.

    While Congress can intervene to prevent political gerrymandering in Congressional elections due to the Elections clause, it has no power or authority to do so in state elections.

    aphrael (e0cdc9)

  139. @ aphrael, when you write “the majority of *actual votes cast in the election* are for the other party,” what election are you talking about? The actual elections take place in districts. If the majority of votes in a district are cast for the party that’s in the minority as measured by state-wide cumulative totals, the minority party wins that district.

    Article Two requires apportionment of Congressional representatives; Baker v. Carr, Reynolds v. Simms, and that lot recognize that the Equal Protection Clause can impose limitations on state legislatures regarding how they allocate the resulting number of Congressional representatives in the district maps they draw; and a scheme that shifted to, say, proportional allocation based on a statewide vote would overturn and thereby violate the existing Equal Protection rights of the voters is each district.

    Beldar (fa637a)

  140. @ aphrael, who wrote (#140):

    Electing a new legislature may be impossible on a quarter-century time horizon due to the effects of the gerrymandering in question.

    Then how did the Texas Legislature flip in less than a decade?

    Beldar (fa637a)

  141. > > If a party has 90% of the votes in a state but only 10% of the seats is your answer still “Politics”?

    > Your premise is impossible. The largest fraction of seats you can possibly have is double your vote fraction.

    Fair enough. So if a party consistently earns 26% of the votes in a state but consistently has 52% of the votes in the legislature because it redraws districts to ensure this after every election, and this goes on for half a century, is it a problem?

    I think any answer other than ‘yes, it is a problem’ is inconsistent with small-d-democratic principles.

    aphrael (e0cdc9)

  142. > If the majority of votes in a district are cast for the party that’s in the minority as measured by state-wide cumulative totals, the minority party wins that district.

    Sure.

    And if the state legislature deliberately draws districts so that a majority of the districts have that result, then the desires of the electorate as a whole are being frustrated, and power lies not with the people writ large, but with the subset of the people the legislators have chosen.

    Look at my example in #143, please. If districts are redrawn after every election to ensure that 26% of the electorate is able to elect 52% of the legislature, and this goes on for decades, is it a problem? Is it consistent with democracy?

    aphrael (e0cdc9)

  143. @ aphrael, who wrote (#138):

    This [in New York] was a legislature carefully crafting lines so that a shrinking minority of the state’s voters could control a legislative body over the objection of the majority of the state’s voters … for close to forty years.

    And who, except the voters of New York, left in place the people who made that deal? No one. In every election cycle, the voters of the respective state representative and senate districts chose to leave in place the politicians who made that deal, or to elect new ones who’d respect it. The bad guys got away with it because their opponents sucked at grass-roots retail politics; New York voters got what they deserved and, apparently, mostly wanted throughout that entire period.

    Beldar (fa637a)

  144. You write “ensure” like the legislators actually get to cast voters’ votes for them. They don’t, and their “entrenchments” can dissolve in a single election cycle if the voters are sufficiently aroused. Getting them aroused is the essence of politics.

    Beldar (fa637a)

  145. You are re-defining small-d democratic principles to take democracy out of them. You don’t see the problem with that? You don’t see that as a bigger problem than actually trusting voters?

    Beldar (fa637a)

  146. The WSJ article I originally linked, as quoted by DRJ in her post, has been completely updated, of course, and here’s the sentence that teases the story from the WSJ’s current homepage:

    Federal judges have no authority to correct partisan gerrymandering, the Supreme Court’s conservative majority said in a 5-to-4 decision that allows politicians to keep drawing electoral districts that entrench their power.

    This is a spectacular example of lying through use of a half-truth. Yes, today’s decision returns power to state legislatures that have been usurped by the federal courts, and — in the phrase that should have been added to the teaser to keep it from being materially misleading — returns to voters the power to discipline abuse of that power by those same state legislatures.

    If you leave that part out, you’re trying to fool someone. Shame on you, WSJ tease-writers.

    Beldar (fa637a)

  147. … *even if the legislature drew boundaries so that a small percentage of voters could elect them over the will of the overwhelming majority of voters* …

    Perhaps that’s the case if we focus on the aggregate totals stateside. By definition it is not the will of the majority of voters in a majority of districts, which is how we actually decide who controls state legislative majorities, not via state-wide cumulative totals.

    You keep changing the focus to one that suits you. Stick to the Rule of Law and the focus it prescribes.

    Beldar (fa637a)

  148. If we focus on “the will of the majority of voters” in America, Al Gore beat Dubya, and Hillary beat Trump.

    Fortunately for Trump and Dubya, that’s not what the electoral college focuses on either.

    Beldar (fa637a)

  149. From the very ideological but clear-eyed liberal election law specialist Rick Hasen, writing in Slate: Donald Trump Is Promising to Fight the Census Case. That Might Actually Work:

    Despite a favorable ruling for opponents of the census citizenship question on Thursday, the Supreme Court did not definitively decide to exclude the citizenship question from the 2020 census. Indeed, I expect that the Trump administration’s Commerce Department and Department of Justice could well be back before the Supreme Court’s next term begins in October arguing for the question’s inclusion, and they could well win and include the question.

    Chief Justice John Roberts wrote Thursday’s decision in Department of Commerce v. New York in a way that put him in the driver’s seat. Joined by the conservatives on the court, Roberts agreed that Commerce Secretary Wilbur Ross had broad discretion under the Constitution’s enumeration clause (which requires the counting of all people in the United States every 10 years), various acts of Congress regulating the census, and the Administrative Procedure Act to include a census question. The conservative justices, who otherwise question broad agency power (including in Wednesday’s decision in Kisor v. Wilkie) saw Ross as having essentially unfettered discretion. There are five votes for this position on the Supreme Court.

    ….

    [T]he agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.

    Even the experts on the Dem side disagree with you, rcocean.

    Beldar (fa637a)

  150. On the other hand, rcocean, David French at National Review agrees with you that this was a Trump loss: Why Trump Lost the Census Case. (He looks at the result from the most superficial viewpoint, except for the part about the Trump Administration screwing the pooch so badly as to have lost, temporarily, Roberts’ vote.) I know you always like to be aligned with David French, so I wanted to be sure to bring this to your attention, as a favor.

    Beldar (fa637a)

  151. I know you always like to be aligned with David French, so I wanted to be sure to bring this to your attention, as a favor.

    LoL. Of course even a Communist and a Christian can agree on somethings. They just have different motivations and viewpoints.

    rcocean (1a839e)

  152. I think Chief Justice Roberts is trying to support both stare decisis and logical consistency between decisions, and he can’t do that.

    Sammy Finkelman (4eddd7)

  153. I think devaluing citizenship is important, I know California and new York do it all the time, but that shouldn’t be first consideration,

    narciso (d1f714)

  154. 154.

    I should amend that to:

    I think Chief Justice Roberts is trying to support calling balls and strikes accurately, stare decisis, and logical consistency between decisions, in that order, but he can only do two out of three, so usually logic loses.

    Sammy Finkelman (385c0e)


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