WEBVTT - Supreme Court Takes on Partisan Gerrymandering Case (Audio) 0:00:00.120 --> 0:00:04.720 It's a case that could have profound ramifications on American elections. Today, 0:00:04.760 --> 0:00:07.440 the Supreme Court announced that it will consider whether judges 0:00:07.480 --> 0:00:10.239 can throw out election maps for being so partisan they 0:00:10.360 --> 0:00:13.360 violate the Constitution. The Court has never found a plan 0:00:13.560 --> 0:00:18.320 unconstitutional because of partisan gerrymandering. Our guests are Rick Hassan, 0:00:18.400 --> 0:00:21.079 professor at U c Irvan and founder of the Election 0:00:21.200 --> 0:00:24.520 Law Blog, and Josh Douglas, professor at the University of 0:00:24.560 --> 0:00:28.120 Kentucky Law School. Rick, will you start by describing the 0:00:28.160 --> 0:00:31.840 case from Wisconsin that the justices will be considering. This 0:00:32.000 --> 0:00:36.000 is one of a number of cases involving partisan gerrymandering 0:00:36.680 --> 0:00:38.879 that has been working his way up the courts. The 0:00:38.920 --> 0:00:42.960 claim here is that Wisconsin is basically a fifty fifty 0:00:43.000 --> 0:00:46.880 state between Democrats and Republicans, but the Republican state legislature 0:00:46.960 --> 0:00:49.080 drew the lines for their General Assembly in such a 0:00:49.120 --> 0:00:52.400 skewed way to help Republicans that Republicans are able to 0:00:52.600 --> 0:00:55.520 capture many more seats than would be done if it 0:00:55.600 --> 0:00:59.400 were a fairly drawn district. Josh, the last time the 0:00:59.440 --> 0:01:01.800 Supreme weren't really dealt with this issue was back in 0:01:01.880 --> 0:01:05.880 twenty four. Can you describe where the Court left us 0:01:05.920 --> 0:01:10.160 after that case. Yeah, well, the Court didn't answer questions 0:01:10.200 --> 0:01:14.040 as much as provided more of them. Uh. For justices 0:01:14.720 --> 0:01:17.840 Uh said that there was no standard by which to 0:01:17.920 --> 0:01:21.480 test a partisan jmander. That is, courts basically shouldn't be 0:01:21.520 --> 0:01:24.240 involved in resolving these kinds of cases because it was 0:01:24.280 --> 0:01:27.400 not of a judicial nature and estead as a political question. 0:01:28.160 --> 0:01:31.920 The four other justices, four so called liberal justice each 0:01:32.000 --> 0:01:34.319 came up with a standard. Uh. They said, here's a 0:01:34.319 --> 0:01:37.000 good standard for courts to use, and we think it's acceptable. 0:01:37.360 --> 0:01:39.600 And Justice Kennedy was in the middle and he said, 0:01:40.560 --> 0:01:43.240 I don't like any of the standards that anyone has 0:01:43.240 --> 0:01:45.679 proposed so far, but I'm not going to close the 0:01:45.720 --> 0:01:47.960 door to any future standard emerging. So you had with 0:01:48.040 --> 0:01:51.880 kind of a four one four decision in which Justice 0:01:51.960 --> 0:01:54.440 Kennedy holds all the keys to power. If he likes 0:01:54.440 --> 0:01:56.960 the standards, then maybe we'll have the ability to police 0:01:56.960 --> 0:01:59.680 partisan jerrymandering. If he doesn't, then there'll be no way 0:01:59.720 --> 0:02:02.720 for course to do so. So Rick, the Court has 0:02:02.760 --> 0:02:06.639 been reluctant to take up partisan jerrymandering since that case. 0:02:07.520 --> 0:02:10.880 Why did they take up this case? Well, there was 0:02:10.919 --> 0:02:13.120 a there was one other case where the Court looked 0:02:13.120 --> 0:02:17.440 at Parson Jerremanry since then involving mid decade redistricting in Texas. 0:02:17.440 --> 0:02:19.520 But you're right that this is the first one. And 0:02:19.560 --> 0:02:22.000 I think the reason, or one reason the Court may 0:02:22.040 --> 0:02:24.040 have taken the case is that it came up in 0:02:24.080 --> 0:02:27.280 an unusual way. Most cases come up they go to 0:02:27.639 --> 0:02:30.920 a district court, then they go to a three judge 0:02:30.919 --> 0:02:33.320 appeals court, and eventually worked their up to the Supreme 0:02:33.360 --> 0:02:36.120 Court on what's called a certain petition. This case came 0:02:36.200 --> 0:02:40.040 up directly from a three judge appeals court. I thought, 0:02:40.040 --> 0:02:42.600 I'm sorry at three judge district court directly on appeal 0:02:42.639 --> 0:02:44.760 to the Supreme Court. And when case has come up 0:02:44.760 --> 0:02:47.760 in this unusual way, when the Supreme Court decides not 0:02:47.840 --> 0:02:50.000 to hear that case, it means the lower court got 0:02:50.240 --> 0:02:53.640 the ruling right. And so this was a rare case 0:02:53.639 --> 0:02:56.560 where a lower court said, yes, this is a partisan gerrymander. 0:02:56.800 --> 0:02:58.840 And so if the Court decided not to hear that case, 0:02:59.480 --> 0:03:02.360 it would have at the signal that yes, courts are 0:03:02.400 --> 0:03:04.320 in the business of policing these things, but we're not 0:03:04.360 --> 0:03:06.720 going to tell you what the standard is, how you're 0:03:06.720 --> 0:03:09.520 supposed to do it. Because this ruling would just mean 0:03:09.560 --> 0:03:12.239 the lower court got it right, not necessarily that it's 0:03:12.639 --> 0:03:16.280 reasoning was correct, and so it would have left so 0:03:16.320 --> 0:03:18.280 many questions if the Court didn't hear the case. I 0:03:18.280 --> 0:03:20.239 really would have been shocked if the Court didn't take 0:03:20.280 --> 0:03:23.120 it to clarify this. So I wouldn't necessarily take it 0:03:23.240 --> 0:03:25.400 as the fact that the Court agreed to hear this 0:03:25.440 --> 0:03:27.840 case as meaning the Court is really ready to start 0:03:27.840 --> 0:03:29.639 policing these things. It really is going to come down 0:03:29.680 --> 0:03:32.960 to Justice Kennedy and the fact that the Court an 0:03:32.960 --> 0:03:36.520 hour after issuing it's order that will hear the case, 0:03:36.800 --> 0:03:40.440 issued another order that it would not stay a lower 0:03:40.440 --> 0:03:43.480 court order to redistrict in the meantime, means that there 0:03:43.560 --> 0:03:47.280 is maybe some skepticism about what the lower court did, Josh, 0:03:47.320 --> 0:03:52.000 As you suggested earlier back in Justice Kennedy said, I 0:03:52.040 --> 0:03:55.360 haven't seen any standards that would let us judge what 0:03:55.600 --> 0:03:59.560 is an unconstitutional partisan jerrymandering. How did the lower court 0:03:59.600 --> 0:04:02.280 in this case deal with that? What was the standard 0:04:02.360 --> 0:04:05.560 that it it suggested? Well, this is a new standard 0:04:05.680 --> 0:04:08.760 that was created by low professor Nick Stephanopolis and a 0:04:08.760 --> 0:04:12.600 political scientist Eric McGee called the efficiency gap and was 0:04:12.640 --> 0:04:15.880 getting without getting two technical into the details of it. 0:04:16.200 --> 0:04:19.160 The basic gist is that it's a mathematical way to 0:04:19.400 --> 0:04:22.440 look at the maps performance UH and see if it's 0:04:22.480 --> 0:04:26.040 skewed towards one board party or another and the lower 0:04:26.040 --> 0:04:29.440 record UH. You recognize that just Kennedy had left the 0:04:29.480 --> 0:04:32.240 door open to a standard and it was a two 0:04:32.279 --> 0:04:37.320 to one decision, agreed with the efficiency gap standard, modified 0:04:37.360 --> 0:04:38.960 it a little bit and came up with a test 0:04:39.000 --> 0:04:42.320 that it thought was judicially manageable and that would pass 0:04:42.440 --> 0:04:48.000 Justice Kennedy's UH test or hope for meaningful standard to emerge. 0:04:48.000 --> 0:04:50.200 And I think one of the key points here is 0:04:50.240 --> 0:04:54.520 that it's a fairly preciser technical standard UH that in 0:04:54.640 --> 0:04:57.040 theory should be easy to apply, and that's one thing 0:04:57.040 --> 0:04:59.800 that T. Kennedy was looking for. We're talking about this 0:05:00.040 --> 0:05:02.520 Preme Court deciding today to take up a case on 0:05:02.680 --> 0:05:06.240 partisan gerrymandering. We're talking with Rick Hassion and professor at 0:05:06.320 --> 0:05:08.640 U c Irvine and founder of the Election Law Blog, 0:05:08.680 --> 0:05:13.800 and Josh Douglas, professor at the University of Kentucky Law School. Rick, 0:05:14.160 --> 0:05:18.279 can you talk about the politics of jerrymandering and whether 0:05:18.360 --> 0:05:22.520 this case has the potential to have a profound effect 0:05:22.760 --> 0:05:25.640 on that and the American election system just you know 0:05:25.760 --> 0:05:32.040 a small question there, right. So I think that the uh, 0:05:32.360 --> 0:05:37.400 the willingness of political uh parties to jerrymander is is 0:05:37.400 --> 0:05:40.280 well established. And um, the reason this has become more 0:05:40.320 --> 0:05:44.160 of a partisan issue with Democrats um being warenched in 0:05:44.200 --> 0:05:46.920 reigning this in the Republicans is that Republicans control more 0:05:46.960 --> 0:05:51.480 state legislatures and therefore they engage in this process more uh. 0:05:51.520 --> 0:05:53.520 And so so I think it does become a kind 0:05:53.680 --> 0:05:58.080 of uh partisan issue. Uh. And if the Court actually 0:05:58.120 --> 0:06:00.680 reigned in partisan gerrymaner, I think we would see would 0:06:00.680 --> 0:06:03.440 be more Democratic seats overall. That wouldn't be true in 0:06:03.480 --> 0:06:06.599 every state, but across the board, and this also would 0:06:06.600 --> 0:06:09.719 affect Congress. I think a state legislature is generally the 0:06:09.720 --> 0:06:13.120 ones that draw districts for Congress, and they'll they'll engage 0:06:13.120 --> 0:06:17.839 in partison gerry managering there too. That said, uh, it's 0:06:17.880 --> 0:06:21.680 not clear that the Court's agreeing to police parton gerrymandering 0:06:21.760 --> 0:06:23.920 is going to have a huge effect on the number 0:06:23.960 --> 0:06:28.159 of seats that are Republican or Democrat, in part because 0:06:28.200 --> 0:06:32.680 Democrats tend to cluster in cities and so there's kind 0:06:32.720 --> 0:06:36.320 of a natural benefit to Republicans as districts are drawn, 0:06:36.440 --> 0:06:39.279 and a natural disadvantage to Democrats. So it's not really 0:06:39.279 --> 0:06:41.839 clear that would have that effect. It's also not clear whether, 0:06:42.160 --> 0:06:45.400 as some people claim, reigning in partsonerry managering would produce 0:06:45.480 --> 0:06:50.279 more moderate candidates as Um, you know, a way to 0:06:50.320 --> 0:06:53.039 try to cure the polarization in our Congress and in 0:06:53.080 --> 0:06:56.919 our state legislatures, Joshua. While it may be unusual for 0:06:56.920 --> 0:07:00.240 the court to directly consider partisan jerry managering, we've had 0:07:00.279 --> 0:07:04.440 an awful lot of racial jerrymandering cases at the Supreme Court. 0:07:04.760 --> 0:07:09.240 Can you connect the two forests? What's the intersection between 0:07:10.040 --> 0:07:13.920 racial jerrymandering cases in the Court's decisions there and this 0:07:13.960 --> 0:07:17.720 partisan jerrymandering issue. Well, I think there's there's two connections, 0:07:17.760 --> 0:07:20.920 and and Rick has a new paper out that fleshes 0:07:20.960 --> 0:07:26.200 is out quite nicely. Um. And the connections here are one. 0:07:26.480 --> 0:07:30.680 Race and party now have become so intertwined. That is 0:07:30.720 --> 0:07:35.000 to say that racial minorities tend to vote democratic, uh, 0:07:35.040 --> 0:07:38.320 and white majorities tend to vote more Republican. Of course 0:07:38.320 --> 0:07:40.440 that's not universal, but I feel like because the numbers 0:07:40.200 --> 0:07:43.440 of those are the trend especially for racial minorities. And 0:07:43.480 --> 0:07:46.680 so you have a link between Toronto trying to draw 0:07:46.800 --> 0:07:50.360 lines on the basis of politics and doing so on 0:07:50.400 --> 0:07:52.560 the basis of race. And in fact, some states have 0:07:52.680 --> 0:07:58.040 defended their their maps on racial jerrymandering challenges by saying, no, 0:07:58.160 --> 0:08:02.720 we're not drawing lines based on race, only concerned about politics. 0:08:03.320 --> 0:08:05.440 So so their linked. And then the second thing I'd 0:08:05.440 --> 0:08:08.840 say is that some plaintiffs have used the racial jerrymandering 0:08:09.440 --> 0:08:13.480 doctrine to attack what are really partisan jerrymanders because of 0:08:13.480 --> 0:08:15.920 that linkage. And so if the court were to adopt 0:08:15.920 --> 0:08:19.559 the standard now for partisan jerreymandering, that would cut out 0:08:19.680 --> 0:08:21.720 the argument that, well, we were really trying to do 0:08:21.760 --> 0:08:24.360 this for politics and not for a race. So I 0:08:24.400 --> 0:08:27.480 think they are very much intertwined. Um, But there's been 0:08:27.520 --> 0:08:30.960 no standard to police partisan jerrymandering as of yet. If 0:08:31.000 --> 0:08:34.240 the court agrees with this standard, then there'll be another 0:08:34.320 --> 0:08:36.400 line of attack. You wouldn't have to go after a 0:08:36.440 --> 0:08:39.960 partisan jerrymander under the guys or racial jerrymander. You should 0:08:40.000 --> 0:08:43.200 go after the partisan gerrymander directly. So Rick in this 0:08:43.280 --> 0:08:47.480 Wisconsin case, the plaintiffs pushed a plan called the Efficiency gap, 0:08:48.440 --> 0:08:51.960 and the lower court didn't endorse it completely. What is 0:08:52.040 --> 0:08:55.760 that plan and what's your opinion of it? Right, So 0:08:56.120 --> 0:08:59.559 the task in in all of these partisan gerrymandering cases 0:08:59.640 --> 0:09:03.320 is fixing out when consideration of political party information is 0:09:03.360 --> 0:09:06.920 too much. Uh. There's a legitimate reason to consider political 0:09:06.920 --> 0:09:09.199 party information when you're drawing districts, because you want to 0:09:09.240 --> 0:09:12.480 put people who have similar ideas together in the same district. 0:09:12.559 --> 0:09:15.480 That way a representative can best represent to that district. 0:09:15.480 --> 0:09:18.360 It would be uh, kind of a strange situation if 0:09:18.400 --> 0:09:20.880 if districts kept changing, if they were saying half Democrats 0:09:20.880 --> 0:09:24.880 and have Republicans, and they kept shifting every couple of years, Uh, 0:09:24.920 --> 0:09:27.000 that might not be great for representation. So all the 0:09:27.040 --> 0:09:30.479 jice agree that okay to look at some party information, 0:09:30.559 --> 0:09:33.080 and the question is how much is too much. In 0:09:33.120 --> 0:09:35.240 the VF case, which was mentioned earlier, the two thousand 0:09:35.280 --> 0:09:37.960 four case, there were I think at least six different 0:09:38.000 --> 0:09:41.320 standards that were put forward before Justice Kennedy, and each 0:09:41.360 --> 0:09:44.360 one of them he rejected as not sufficiently manageable as 0:09:44.360 --> 0:09:47.880 a standard. And so what's been happening since VIFS the 0:09:47.920 --> 0:09:50.040 planets have tried to come up with other standards and 0:09:50.400 --> 0:09:54.640 the standard that the Planets latched onto in the Wisconsin 0:09:54.720 --> 0:09:58.080 case is as you mentioned earlier, called the efficiency gap, 0:09:58.120 --> 0:10:01.960 and it's basically looking at how many votes are wasted 0:10:02.000 --> 0:10:04.640 in each district. So, for example, if you stick a 0:10:04.679 --> 0:10:07.560 whole bunch of Democrats into a district, so a district 0:10:07.880 --> 0:10:12.439 that's electing a Democrat has Democratic voters and Republicans to 0:10:12.520 --> 0:10:17.920 keep the example very simple, then those extra thirty percent 0:10:18.000 --> 0:10:20.679 of Democratic voters, those votes are kind of wasted. They 0:10:20.679 --> 0:10:23.040 could have been put into other districts. And so if 0:10:23.040 --> 0:10:24.839 you see much more of this happening on the on 0:10:24.920 --> 0:10:28.360 the two Democrats and Republicans, you have this kind of asymmetry, 0:10:28.440 --> 0:10:31.439 then that shows you, um, that there could be a 0:10:31.480 --> 0:10:35.000 partisan Gerrymager Plane put that standard out there. The Court 0:10:35.080 --> 0:10:36.800 partially adopted it, and it's going to be one of 0:10:36.800 --> 0:10:38.800 the many standards that are going to be put before 0:10:39.160 --> 0:10:43.320 Justice Kennedy as the case gets considered next term. About 0:10:43.320 --> 0:10:46.520 thirty seconds left of Josh, do you agree that Justice 0:10:46.600 --> 0:10:49.520 Kennedy will be the swing vote in this Yeah, He's 0:10:49.520 --> 0:10:52.240 absolutely the swing vote because he's uh, he said in 0:10:52.240 --> 0:10:54.680 that two thousand and four case. Um, I don't like 0:10:54.720 --> 0:10:56.720 any of the standards out there, but I'm open to 0:10:56.960 --> 0:11:00.480 a standard emerging uh if if if someone who's really 0:11:00.480 --> 0:11:02.720 smart can come up with it, and so he apparently 0:11:02.720 --> 0:11:05.560 is still actively looking and so he's the old ball game. 0:11:06.200 --> 0:11:09.679 Thank you both for being on Bloomberg Law. That's Josh Douglas, 0:11:09.720 --> 0:11:12.959 professor at the University of Kentucky School of Law, and 0:11:13.080 --> 0:11:15.640 Rick hass And, professor at U c Irvine, also founder 0:11:15.679 --> 0:11:18.480 of the Election Law Blog, which we all follow.