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The Justices Have Questions About How to Fix Partisan Gerrymandering

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As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a “steak rub.” That is, it should not be imprecise and opaque in its makeup: “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.”

In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:

  • Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.

  • Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.

  • Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.

  • Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that........

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