Is gerrymandering constitutional?

[muon2]

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.

You must be logged in to read this quote.

The glossary at usconstitution.net defines republican this way:

You must be logged in to read this quote.

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):

You must be logged in to read this quote.

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.

[muon2]

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.

[muon2]

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.

[muon2]

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?

It's not as simple as one county and one city. The preference allowed me to rotate a whole string of counties and I could use the whole city preference rule to avoid any penalty.

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.

Cleveland is not a great example since Cuyahoga is subject to the VRA. Keeping Cleveland whole prevents the creation of a CD where the black minority can elect their candidate of choice.

[muon2]

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?

It's not as simple as one county and one city. The preference allowed me to rotate a whole string of counties and I could use the whole city preference rule to avoid any penalty.

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.

Cleveland is not a great example since Cuyahoga is subject to the VRA. Keeping Cleveland whole prevents the creation of a CD where the black minority can elect their candidate of choice.

I think the Cleveland-Akron VRA district is on very shaky grounds (it crosses metro lines, for starters, and is likely losing BVAP, like much of Northeastern Ohio is losing VAP). The mapmakers may choose to keep it, but it might not be strictly necessary after the next census - if it even was this time around. It might not even be possible to draw a black majority district in NE Ohio after 2020.

One of the directions the courts are going is to recognize that though a 50%+ district could be drawn, it may not need to be drawn to comply with the VRA. The Cleveland-Akron in 2010 is 50%+, but legal observers in OH in 2010 thought that a 48% BVAP in Cuyahoga alone would elect the black candidate of choice and thus meet VRA requirements. The thought wasn't tested in OH, but is was in IL. In the state legislative map in 2011 the 7th Circuit found that a district in the high 40% range in E St Louis met the VRA requirements and the 50%+1 district wasn't required even though it was possible.

[muon2]

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?

It's not as simple as one county and one city. The preference allowed me to rotate a whole string of counties and I could use the whole city preference rule to avoid any penalty.

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.

Cleveland is not a great example since Cuyahoga is subject to the VRA. Keeping Cleveland whole prevents the creation of a CD where the black minority can elect their candidate of choice.

I would have to see the example, and then decide if the result is bad. I really cannot envision it. Just to be clear, not chopping counties still has priority. It is just that if there are the same number of chops, then the map that avoids chopping a city because the two counties that the subject city is in are in the same rather than different CD's, prevails. Using the word "gaming" seems tendentious to me.

Unfortunately the OH competition web site was taken down. The best illustration I could make would be to show you the top finishers and show how the competition's city preference rule allowed one to selectively gerrymander districts by a point or so. Understanding that effect allowed one to win in way based solely on that understanding. From what I could tell that was not the intent those designing the challenge. I wouldn't have thought that was a particularly tendentious use of the word gaming, which of course starts with negative connotations anyway.

You must be logged in to read this quote.

- Oxford Dictionaries by way of Bing Translator

[muon2]

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?

It's not as simple as one county and one city. The preference allowed me to rotate a whole string of counties and I could use the whole city preference rule to avoid any penalty.

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.

Cleveland is not a great example since Cuyahoga is subject to the VRA. Keeping Cleveland whole prevents the creation of a CD where the black minority can elect their candidate of choice.

I think the Cleveland-Akron VRA district is on very shaky grounds (it crosses metro lines, for starters, and is likely losing BVAP, like much of Northeastern Ohio is losing VAP). The mapmakers may choose to keep it, but it might not be strictly necessary after the next census - if it even was this time around. It might not even be possible to draw a black majority district in NE Ohio after 2020.

One of the directions the courts are going is to recognize that though a 50%+ district could be drawn, it may not need to be drawn to comply with the VRA. The Cleveland-Akron in 2010 is 50%+, but legal observers in OH in 2010 thought that a 48% BVAP in Cuyahoga alone would elect the black candidate of choice and thus meet VRA requirements. The thought wasn't tested in OH, but is was in IL. In the state legislative map in 2011 the 7th Circuit found that a district in the high 40% range in E St Louis met the VRA requirements and the 50%+1 district wasn't required even though it was possible.

I think the point is that a good case could be made that there is no contiguous minority territory that is 50% BVAP that would mandate that a VRA district be drawn (which could as drawn be somewhat less than 50% BVAP and still comply with the VRA). In reality of course, a black performing district will be drawn most probably for political reasons. And after the next census, it might not be possible to drawn any 50% BVAP CD in the Cleveland area, even if it travels to inner city Akron.

We agree that there should be a standard of contiguity for minority areas, but the court hasn't accepted that. The best they've said is that you can't link communities hundreds of miles away that share no interests. I suspect that the court would find that Cuyahoga and Summit are adjacent and that's good enough to require a VRA district, even if the minority areas are separated. I also suspect that if OH loses a seat, then it won't be possible to meet the Gingles threshold in that area as the district population will be too large.