Is gerrymandering constitutional?
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  Is gerrymandering constitutional?
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Author Topic: Is gerrymandering constitutional?  (Read 3285 times)
Bidenworth2020
politicalmasta73
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« on: October 04, 2017, 04:51:19 PM »

discuss
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Virginiá
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« Reply #1 on: October 04, 2017, 05:07:50 PM »

Obligatory IANAL aside:  I think there are probably 1st amendment issues at hand (free association, maybe political speech), as well as maybe 14th amendment issues (equal protection). I'm not saying they are definitely valid arguments, just that they seem to make sense, and I think gerrymandering probably violates one or more of them. My take is in the quote boxes:

1. Freedom of Association (1st):

Wikipedia says this about freedom of association:

Freedom of association encompasses both an individual's right to join or leave groups voluntarily, and the right of the group to take collective action to pursue the interests of its members

Gerrymandering punishes a person for associating with a group - a political party - by diminishing their power and their ability to take collective action to pursue the interests of their members. It essentially punishes a person for supporting a party by diminishing the value of their vote.


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2. Political speech (1st): Is your not right to political speech not infringed by gerrymandering, which basically puts limits on your party's ability to win elections, simply for being the other party?


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3. Equal protection (14th):

This was from the recent partisan gerrymandering scotus hearing:



That is what gerrymandering is, right? Partisans of one party pass a law - new district maps - to harm the opposition party by taking away / diminishing their ability to win elections. The law essentially targets [Democrats/Republicans]. Eg, in North Carolina, you are being punished by the state for being a Democrat, while Republicans are rewarded with extra political power for being Republicans.


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I don't know which of these arguments would be valid, if any, but I think they have merit. Also, as per my obligatory IANAL statement, I may have made a mistake or two or overlooked some precedent. Either way, they seem like reasonable theories to be discussed in regards to gerrymandering.
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MarkD
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« Reply #2 on: October 04, 2017, 07:15:54 PM »

I don't think it is unconstitutional given the current structure, history, and wording of the Constitution, but I am willing to adopt an amendment that prevents gerrymandering by requiring all states to use independent redistricting committees to draw congressional district lines and state legislative district lines. Perhaps part  of the instruction to the committees could be that they must use logarithms.

Gerrymandering is nothing more that an attempt to take advantage of the predictability of the voters. It only works when a very huge majority of voters do vote straight tickets. Independent voters have the power to thwart the goals of gerrymanderers, and they sometimes do use that power. That happened fifteen years ago in PA-17 and UT-2.
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cinyc
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« Reply #3 on: October 05, 2017, 05:19:19 PM »
« Edited: October 05, 2017, 05:24:21 PM by cinyc »

The Freedom of Association argument makes no sense. Why is my Freedom of Association any less impacted by a supposedly neutral map where I’m “naturally” put in a district with a bunch of Democrats who I don’t agree with and vote against, instead of a Gerrymandered map where I get either the same result or (by some miracle in a state like New York) get put in a district that actually elects my Republican candidate of choice? This cannot be solved, except by proportional representation.

Nevermind the fact that there’s no such thing as “neutral” redistricting principles or map-makers to begin with. Every choice has a partisan effect.

But “Freedom of Assocation” seems to be the argument Justice Kennedy is most likely to buy, unfortunately.

As far as I’m concerned, a practice that is actually named for Elbridge Gerry’s political packing of districts in Massachusetts in 1812, and has existed since the First Congress can’t suddenly become unconstitutional in 2017. It just doesn’t work that way.
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SteveRogers
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« Reply #4 on: October 05, 2017, 10:47:12 PM »

The Freedom of Association argument makes no sense. Why is my Freedom of Association any less impacted by a supposedly neutral map where I’m “naturally” put in a district with a bunch of Democrats who I don’t agree with and vote against, instead of a Gerrymandered map where I get either the same result or (by some miracle in a state like New York) get put in a district that actually elects my Republican candidate of choice? This cannot be solved, except by proportional representation.
Because what the Constitution forbids is for the government to single you out based on your political ideology. When your state legislature intentionally dilutes your voting power based on your party affiliation, that is viewpoint-based discrimination in violation of your First Amendment rights.

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cinyc
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« Reply #5 on: October 05, 2017, 11:40:37 PM »
« Edited: October 05, 2017, 11:49:43 PM by cinyc »

The Freedom of Association argument makes no sense. Why is my Freedom of Association any less impacted by a supposedly neutral map where I’m “naturally” put in a district with a bunch of Democrats who I don’t agree with and vote against, instead of a Gerrymandered map where I get either the same result or (by some miracle in a state like New York) get put in a district that actually elects my Republican candidate of choice? This cannot be solved, except by proportional representation.
Because what the Constitution forbids is for the government to single you out based on your political ideology. When your state legislature intentionally dilutes your voting power based on your party affiliation, that is viewpoint-based discrimination in violation of your First Amendment rights.



The government is doing that either way by putting me in a district with a bunch of Democrats. Whether that is under the guise of supposedly "neutral" principles doesn't matter. The effect is the same - my voice is being diluted by Democrats.

And yes, the answer is somewhat clouded by my view that no redistricting principles are really neutral and always involve political calculations of some stripe. In other words, there's always (allegedly) discriminatory intent. Even the Muon rules depend on a calculation that cities need not remain whole. That tends to favor Democrats, as cities tend to be Democratic, and being able to split cities allows perfectly legal abominations like the city of Chicago dominating Illinois' maps through baconstrips.

Redistricting has always been politically motivated, and always will be. How it is done is a political question that the courts should and traditionally have stayed out of, absent VRA issues. It's a thicket that the courts really should avoid falling into.

Unfortunately, my prediction is that Justice Kennedy will cave, and create some unworkable balancing test that will muddy the redistricting waters for decades to come.
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muon2
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« Reply #6 on: October 06, 2017, 07:59:44 AM »

In full disclosure, I am a signatory on one of the amicus briefs in support of the appellees in Gill v Whitford. I think there is a key argument that modern computer-driven gerrymandering violates Art 4 Section 4 of the US Constitution.

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The glossary at usconstitution.net defines republican this way:

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What has happened is that the tools have become incredibly effective at allowing the legislators in the majority to select their constituents in a way that insures their hold on office. SCOTUS recognized the problem in AZ State Leg vs AZ Indep Redistricting Comm (2015):

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In Vieth the SCOTUS found that "partisan gerrymanders were incompatible with democratic principles". But in that case they could find no remedy and held that the case was nonjusticiable. The WI case will come down to whether SCOTUS thinks that the problem of gerrymandering has reached a point where some standard must be established. I would expect that if there is a standard, it won't be a bright line but rather a balanced set of principles. At least, that's what drove my thinking in the muon rules - that different criteria have to be balanced against each other, and I would hope SCOTUS sees it the same way.
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Torie
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« Reply #7 on: October 06, 2017, 09:33:09 AM »

It is not the muon2 rules that cause cities to be gratuitously chopped (such an activity is penalized) but rather the VRA. Indeed under the muon2 rules, if cities are gratuitously macro-chopped, the erosity score tanks. Such a map would never hit the Pareto optimal frontier, unless "saved" by the VRA.
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muon2
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« Reply #8 on: October 06, 2017, 09:56:22 AM »

It is not the muon2 rules that cause cities to be gratuitously chopped (such an activity is penalized) but rather the VRA. Indeed under the muon2 rules, if cities are gratuitously macro-chopped, the erosity score tanks. Such a map would never hit the Pareto optimal frontier, unless "saved" by the VRA.

That is usually the case. There can be exceptions where the choice is between preserving a city or a UCC, especially when the city crosses county lines within a UCC.
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cinyc
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« Reply #9 on: October 06, 2017, 01:21:18 PM »

It is not the muon2 rules that cause cities to be gratuitously chopped (such an activity is penalized) but rather the VRA. Indeed under the muon2 rules, if cities are gratuitously macro-chopped, the erosity score tanks. Such a map would never hit the Pareto optimal frontier, unless "saved" by the VRA.

Causes is a little bit strong. Allows is more what I am thinking.

If I were to write the rules, cities would be the municipalities of first order that would not allowed to be chopped, even above counties. And yes, I have both non-political and political reasons for making that choice - cities are the most basic form of government that people elect, and the main basis of identity for most people, especially where school district line follow city boundaries. What municipality you live in matters. It would also have the practical effect of not allowing Democrats to chop cities to Gerrymander.
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krazen1211
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« Reply #10 on: October 06, 2017, 02:58:47 PM »

As far as I’m concerned, a practice that is actually named for Elbridge Gerry’s political packing of districts in Massachusetts in 1812, and has existed since the First Congress can’t suddenly become unconstitutional in 2017. It just doesn’t work that way.

Link

In one of the earliest exercises of what later came to be known as a “gerrymander,” Henry made sure that Orange County fell in a district heavily tainted with Antifederalism. The election law, moreover, required one year’s residence in the district, a provision some said was pointedly designed to prevent JM from transferring his candidacy to a friendlier district.



Of course, gerrymandering is a process complaint, but the arguments made in this case are outcome driven. A wholly identical set of districts would be considered fine according to their formula if a given political party was winning more of them.
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LetsTalkElections
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« Reply #11 on: October 09, 2017, 01:06:42 AM »

Discuss.
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pbrower2a
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« Reply #12 on: October 09, 2017, 07:46:10 AM »

Might -- but there would be a question of whether it is a legitimate use of political advantage or whether it would be a violation of voting rights. 
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Sirius_
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« Reply #13 on: October 09, 2017, 10:06:22 AM »

They might not do it only because people would think they favor dems (despite that being an uncontrollable consequence rather than favoritism).
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Tintrlvr
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« Reply #14 on: October 09, 2017, 10:41:29 AM »

I'm being pessimistic on this one, but it's possible. If so, it will probably be a rambling opinion by Kennedy that takes a least a decade of further litigation to produce something resembling a test that a trial court could actually apply, not because it is not possible to produce a good test but because I don't think Kennedy is capable of writing one.
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NewYorkExpress
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« Reply #15 on: October 09, 2017, 01:32:51 PM »

I actually think at least one Democratic justice sides with Gorsuch, Roberts and Thomas, because they realize that Gerrymandering benefits their party as well (when they control the map-making process). If I had to guess, some combination of Kagan, Breyer and Sotomayor sides with the Republicans (and Kennedy, I suppose...) for a 7-2 vote or 8-1 vote (I realize that leaves Ginsburg possibly voting on her lonesome...)
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UncleSam
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« Reply #16 on: October 09, 2017, 03:21:03 PM »

I think the liberals will come up with an incredibly narrow test that invalidates Wisconsin's map but does basically nothing to impact the issue of gerrymandering in other states.

Roberts, Gorsuch, and Alito all clearly will vote against interceding on it, and Thomas is a good bet to join them. Ginsburg is near certain to vote to intercede, and Sotomayer and Kagan both sounded like they were good bets to side with Ginsburg. Breyer sounded like he was in the Ginsburg camp but in a more restrained manner, while also appealing pretty blatantly to Kennedy (as were both lawyers). It's kind of farcical that almost all issues come down to what Anthony Kennedy thinks on any given topic - that's not how the judicial branch is supposed to work.
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PoliticalJunkie23
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« Reply #17 on: October 09, 2017, 03:28:35 PM »

It might decide to change the map of Wisconsin, but I have a bad feeling it won't declare gerrymandering unconstitutional across the board.
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Torie
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« Reply #18 on: October 09, 2017, 07:46:17 PM »
« Edited: October 09, 2017, 07:48:28 PM by Torie »

It is not the muon2 rules that cause cities to be gratuitously chopped (such an activity is penalized) but rather the VRA. Indeed under the muon2 rules, if cities are gratuitously macro-chopped, the erosity score tanks. Such a map would never hit the Pareto optimal frontier, unless "saved" by the VRA.

Causes is a little bit strong. Allows is more what I am thinking.

If I were to write the rules, cities would be the municipalities of first order that would not allowed to be chopped, even above counties. And yes, I have both non-political and political reasons for making that choice - cities are the most basic form of government that people elect, and the main basis of identity for most people, especially where school district line follow city boundaries. What municipality you live in matters. It would also have the practical effect of not allowing Democrats to chop cities to Gerrymander.

It is not crazy to prefer cities over counties, but the accepted norm is counties over cities. I do think there is a case to be made, that if a county is to be chopped, the preferred chop would be to unite a city, but Muon2 does not like preference rules. We disagree about that. More to the point though, I can't think of a single case where keeping cities united as job as part of the Muon2 rules would have changed the political complexion of any CD in the nation,  assuming the VRA is still in place. Can you think of any such instance?
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Virginiá
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« Reply #19 on: October 09, 2017, 08:37:26 PM »

It's kind of farcical that almost all issues come down to what Anthony Kennedy thinks on any given topic - that's not how the judicial branch is supposed to work.

Republicans could always appoint more justices like Anthony Kennedy Tongue
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Dr. MB
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« Reply #20 on: October 09, 2017, 11:59:48 PM »

It's kind of farcical that almost all issues come down to what Anthony Kennedy thinks on any given topic - that's not how the judicial branch is supposed to work.

Republicans could always appoint more justices like Anthony Kennedy Tongue
Hopefully if Kennedy retires or dies before 2021 Trump will appoint someone ideologically similar to him...
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muon2
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« Reply #21 on: October 10, 2017, 03:35:09 PM »

It is not the muon2 rules that cause cities to be gratuitously chopped (such an activity is penalized) but rather the VRA. Indeed under the muon2 rules, if cities are gratuitously macro-chopped, the erosity score tanks. Such a map would never hit the Pareto optimal frontier, unless "saved" by the VRA.

Causes is a little bit strong. Allows is more what I am thinking.

If I were to write the rules, cities would be the municipalities of first order that would not allowed to be chopped, even above counties. And yes, I have both non-political and political reasons for making that choice - cities are the most basic form of government that people elect, and the main basis of identity for most people, especially where school district line follow city boundaries. What municipality you live in matters. It would also have the practical effect of not allowing Democrats to chop cities to Gerrymander.

It is not crazy to prefer cities over counties, but the accepted norm is counties over cities. I do think there is a case to be made, that if a county is to be chopped, the preferred chop would be to unite a city, but Muon2 does not like preference rules. We disagree about that. More to the point though, I can't think of a single case where keeping cities united as job as part of the Muon2 rules would have changed the political complexion of any CD in the nation,  assuming the VRA is still in place. Can you think of any such instance?

That particular preference rule was used in the OH redistricting competition. I found that I could easily game it, and that helped me win. The effect was a lot like the microchop we at one point considered for the rules, but besides fine tuning population, it also allowed me to fine tune the competitiveness of districts. I could tweak borderline competitive districts to toss-up or to flip a toss-up to whichever party I needed to improve balance. It was clearly a case of political gerrymandering, just not one executed by one party against the other.
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Torie
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« Reply #22 on: October 10, 2017, 03:58:04 PM »

I don't understand how you could game it under your rules. You need to find cities split between counties that involve a county that can be chopped and still get a top score, and then that it makes a partisan difference. Where in Ohio would one find such opportunities under your rules?
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cinyc
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« Reply #23 on: October 10, 2017, 07:28:15 PM »

I don't understand how you could game it under your rules. You need to find cities split between counties that involve a county that can be chopped and still get a top score, and then that it makes a partisan difference. Where in Ohio would one find such opportunities under your rules?
I believe the city of Columbus crosses into Fairfield and Delaware Counties.

But that's not how you game the system. You game it by splitting up a city like Cleveland into 2 CDs, instead of the more rational move keeping the city whole and splitting a smaller municipality.
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Linus Van Pelt
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« Reply #24 on: October 10, 2017, 07:48:21 PM »

I think the supposed Bill of Rights violations are all dubious, but I kind of agree with Muon's take that it violates the guarantee of republican government in IV.4.
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