I wrote about a Supreme Court case concerning political gerrymandering the other day. It drew this response.
I’m disappointed in your gerrymandering column because it used three strawmen. First, plaintiffs aren’t askingfor courts to strike down district lines whenever there’s an efficiency gap. It’s just one factor courts should look at. Secondly, they’re asking the court to stop majorities from entrenching themselves, not just creating a map that gives them an advantage. Third, you misstate the First amendment claim. The claim isn’t that one party has “a right not to have votes wasted at higher rates than another.” It’s that voters shouldn’t be punished for associating with one party or another. That’s what gerrymandering does, and why it’s unconstitutional.
It seems to me you’re making distinctions without a difference.
On 1): My column didn’t say that the efficiency gap was the only factor that the courts were being asked to look at. But I don’t see a constitutional argument for their looking at it at all. And it is the most important thing they’re being asked to look at. So, for example, one of the other factors is going to be whether a map was drawn with partisan intent. As long ago as 1986, a Supreme Court plurality observed that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” In the current case, one way the district court found partisan intent was to discover that “from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were drawing.” Every lawsuit against a map is going to pass this part of the test.
2) Any attempt by the majority party to eke out an advantage in redistricting can be described as an attempt to entrench itself in power.
3) Again, this is a different way of saying the same thing. How does partisan gerrymandering “punish” voters of one party? By making it likely that a higher percentage of votes for the party’s candidates will be “wasted” than of votes for the other party’s candidates.
There might well be a good argument for reining in partisan gerrymandering. Different states are free to experiment with different approaches. There is no good case for Supreme Court intervention.