Speaker 1: It's a case that could have profound ramifications on American elections. Today,
Speaker 1: the Supreme Court announced that it will consider whether judges
Speaker 1: can throw out election maps for being so partisan they
Speaker 1: violate the Constitution. The Court has never found a plan
Speaker 1: unconstitutional because of partisan gerrymandering. Our guests are Rick Hassan,
Speaker 1: professor at U c Irvan and founder of the Election
Speaker 1: Law Blog, and Josh Douglas, professor at the University of
Speaker 1: Kentucky Law School. Rick, will you start by describing the
Speaker 1: case from Wisconsin that the justices will be considering. This
Speaker 1: is one of a number of cases involving partisan gerrymandering
Speaker 1: that has been working his way up the courts. The
Speaker 1: claim here is that Wisconsin is basically a fifty fifty
Speaker 1: state between Democrats and Republicans, but the Republican state legislature
Speaker 1: drew the lines for their General Assembly in such a
Speaker 1: skewed way to help Republicans that Republicans are able to
Speaker 1: capture many more seats than would be done if it
Speaker 1: were a fairly drawn district. Josh, the last time the
Speaker 1: Supreme weren't really dealt with this issue was back in
Speaker 1: twenty four. Can you describe where the Court left us
Speaker 1: after that case. Yeah, well, the Court didn't answer questions
Speaker 1: as much as provided more of them. Uh. For justices
Speaker 1: Uh said that there was no standard by which to
Speaker 1: test a partisan jmander. That is, courts basically shouldn't be
Speaker 1: involved in resolving these kinds of cases because it was
Speaker 1: not of a judicial nature and estead as a political question.
Speaker 1: The four other justices, four so called liberal justice each
Speaker 1: came up with a standard. Uh. They said, here's a
Speaker 1: good standard for courts to use, and we think it's acceptable.
Speaker 1: And Justice Kennedy was in the middle and he said,
Speaker 1: I don't like any of the standards that anyone has
Speaker 1: proposed so far, but I'm not going to close the
Speaker 1: door to any future standard emerging. So you had with
Speaker 1: kind of a four one four decision in which Justice
Speaker 1: Kennedy holds all the keys to power. If he likes
Speaker 1: the standards, then maybe we'll have the ability to police
Speaker 1: partisan jerrymandering. If he doesn't, then there'll be no way
Speaker 1: for course to do so. So Rick, the Court has
Speaker 1: been reluctant to take up partisan jerrymandering since that case.
Speaker 1: Why did they take up this case? Well, there was
Speaker 1: a there was one other case where the Court looked
Speaker 1: at Parson Jerremanry since then involving mid decade redistricting in Texas.
Speaker 1: But you're right that this is the first one. And
Speaker 1: I think the reason, or one reason the Court may
Speaker 1: have taken the case is that it came up in
Speaker 1: an unusual way. Most cases come up they go to
Speaker 1: a district court, then they go to a three judge
Speaker 1: appeals court, and eventually worked their up to the Supreme
Speaker 1: Court on what's called a certain petition. This case came
Speaker 1: up directly from a three judge appeals court. I thought,
Speaker 1: I'm sorry at three judge district court directly on appeal
Speaker 1: to the Supreme Court. And when case has come up
Speaker 1: in this unusual way, when the Supreme Court decides not
Speaker 1: to hear that case, it means the lower court got
Speaker 1: the ruling right. And so this was a rare case
Speaker 1: where a lower court said, yes, this is a partisan gerrymander.
Speaker 1: And so if the Court decided not to hear that case,
Speaker 1: it would have at the signal that yes, courts are
Speaker 1: in the business of policing these things, but we're not
Speaker 1: going to tell you what the standard is, how you're
Speaker 1: supposed to do it. Because this ruling would just mean
Speaker 1: the lower court got it right, not necessarily that it's
Speaker 1: reasoning was correct, and so it would have left so
Speaker 1: many questions if the Court didn't hear the case. I
Speaker 1: really would have been shocked if the Court didn't take
Speaker 1: it to clarify this. So I wouldn't necessarily take it
Speaker 1: as the fact that the Court agreed to hear this
Speaker 1: case as meaning the Court is really ready to start
Speaker 1: policing these things. It really is going to come down
Speaker 1: to Justice Kennedy and the fact that the Court an
Speaker 1: hour after issuing it's order that will hear the case,
Speaker 1: issued another order that it would not stay a lower
Speaker 1: court order to redistrict in the meantime, means that there
Speaker 1: is maybe some skepticism about what the lower court did, Josh,
Speaker 1: As you suggested earlier back in Justice Kennedy said, I
Speaker 1: haven't seen any standards that would let us judge what
Speaker 1: is an unconstitutional partisan jerrymandering. How did the lower court
Speaker 1: in this case deal with that? What was the standard
Speaker 1: that it it suggested? Well, this is a new standard
Speaker 1: that was created by low professor Nick Stephanopolis and a
Speaker 1: political scientist Eric McGee called the efficiency gap and was
Speaker 1: getting without getting two technical into the details of it.
Speaker 1: The basic gist is that it's a mathematical way to
Speaker 1: look at the maps performance UH and see if it's
Speaker 1: skewed towards one board party or another and the lower
Speaker 1: record UH. You recognize that just Kennedy had left the
Speaker 1: door open to a standard and it was a two
Speaker 1: to one decision, agreed with the efficiency gap standard, modified
Speaker 1: it a little bit and came up with a test
Speaker 1: that it thought was judicially manageable and that would pass
Speaker 1: Justice Kennedy's UH test or hope for meaningful standard to emerge.
Speaker 1: And I think one of the key points here is
Speaker 1: that it's a fairly preciser technical standard UH that in
Speaker 1: theory should be easy to apply, and that's one thing
Speaker 1: that T. Kennedy was looking for. We're talking about this
Speaker 1: Preme Court deciding today to take up a case on
Speaker 1: partisan gerrymandering. We're talking with Rick Hassion and professor at
Speaker 1: U c Irvine and founder of the Election Law Blog,
Speaker 1: and Josh Douglas, professor at the University of Kentucky Law School. Rick,
Speaker 1: can you talk about the politics of jerrymandering and whether
Speaker 1: this case has the potential to have a profound effect
Speaker 1: on that and the American election system just you know
Speaker 1: a small question there, right. So I think that the uh,
Speaker 1: the willingness of political uh parties to jerrymander is is
Speaker 1: well established. And um, the reason this has become more
Speaker 1: of a partisan issue with Democrats um being warenched in
Speaker 1: reigning this in the Republicans is that Republicans control more
Speaker 1: state legislatures and therefore they engage in this process more uh.
Speaker 1: And so so I think it does become a kind
Speaker 1: of uh partisan issue. Uh. And if the Court actually
Speaker 1: reigned in partisan gerrymaner, I think we would see would
Speaker 1: be more Democratic seats overall. That wouldn't be true in
Speaker 1: every state, but across the board, and this also would
Speaker 1: affect Congress. I think a state legislature is generally the
Speaker 1: ones that draw districts for Congress, and they'll they'll engage
Speaker 1: in partison gerry managering there too. That said, uh, it's
Speaker 1: not clear that the Court's agreeing to police parton gerrymandering
Speaker 1: is going to have a huge effect on the number
Speaker 1: of seats that are Republican or Democrat, in part because
Speaker 1: Democrats tend to cluster in cities and so there's kind
Speaker 1: of a natural benefit to Republicans as districts are drawn,
Speaker 1: and a natural disadvantage to Democrats. So it's not really
Speaker 1: clear that would have that effect. It's also not clear whether,
Speaker 1: as some people claim, reigning in partsonerry managering would produce
Speaker 1: more moderate candidates as Um, you know, a way to
Speaker 1: try to cure the polarization in our Congress and in
Speaker 1: our state legislatures, Joshua. While it may be unusual for
Speaker 1: the court to directly consider partisan jerry managering, we've had
Speaker 1: an awful lot of racial jerrymandering cases at the Supreme Court.
Speaker 1: Can you connect the two forests? What's the intersection between
Speaker 1: racial jerrymandering cases in the Court's decisions there and this
Speaker 1: partisan jerrymandering issue. Well, I think there's there's two connections,
Speaker 1: and and Rick has a new paper out that fleshes
Speaker 1: is out quite nicely. Um. And the connections here are one.
Speaker 1: Race and party now have become so intertwined. That is
Speaker 1: to say that racial minorities tend to vote democratic, uh,
Speaker 1: and white majorities tend to vote more Republican. Of course
Speaker 1: that's not universal, but I feel like because the numbers
Speaker 1: of those are the trend especially for racial minorities. And
Speaker 1: so you have a link between Toronto trying to draw
Speaker 1: lines on the basis of politics and doing so on
Speaker 1: the basis of race. And in fact, some states have
Speaker 1: defended their their maps on racial jerrymandering challenges by saying, no,
Speaker 1: we're not drawing lines based on race, only concerned about politics.
Speaker 1: So so their linked. And then the second thing I'd
Speaker 1: say is that some plaintiffs have used the racial jerrymandering
Speaker 1: doctrine to attack what are really partisan jerrymanders because of
Speaker 1: that linkage. And so if the court were to adopt
Speaker 1: the standard now for partisan jerreymandering, that would cut out
Speaker 1: the argument that, well, we were really trying to do
Speaker 1: this for politics and not for a race. So I
Speaker 1: think they are very much intertwined. Um, But there's been
Speaker 1: no standard to police partisan jerrymandering as of yet. If
Speaker 1: the court agrees with this standard, then there'll be another
Speaker 1: line of attack. You wouldn't have to go after a
Speaker 1: partisan jerrymander under the guys or racial jerrymander. You should
Speaker 1: go after the partisan gerrymander directly. So Rick in this
Speaker 1: Wisconsin case, the plaintiffs pushed a plan called the Efficiency gap,
Speaker 1: and the lower court didn't endorse it completely. What is
Speaker 1: that plan and what's your opinion of it? Right, So
Speaker 1: the task in in all of these partisan gerrymandering cases
Speaker 1: is fixing out when consideration of political party information is
Speaker 1: too much. Uh. There's a legitimate reason to consider political
Speaker 1: party information when you're drawing districts, because you want to
Speaker 1: put people who have similar ideas together in the same district.
Speaker 1: That way a representative can best represent to that district.
Speaker 1: It would be uh, kind of a strange situation if
Speaker 1: if districts kept changing, if they were saying half Democrats
Speaker 1: and have Republicans, and they kept shifting every couple of years, Uh,
Speaker 1: that might not be great for representation. So all the
Speaker 1: jice agree that okay to look at some party information,
Speaker 1: and the question is how much is too much. In
Speaker 1: the VF case, which was mentioned earlier, the two thousand
Speaker 1: four case, there were I think at least six different
Speaker 1: standards that were put forward before Justice Kennedy, and each
Speaker 1: one of them he rejected as not sufficiently manageable as
Speaker 1: a standard. And so what's been happening since VIFS the
Speaker 1: planets have tried to come up with other standards and
Speaker 1: the standard that the Planets latched onto in the Wisconsin
Speaker 1: case is as you mentioned earlier, called the efficiency gap,
Speaker 1: and it's basically looking at how many votes are wasted
Speaker 1: in each district. So, for example, if you stick a
Speaker 1: whole bunch of Democrats into a district, so a district
Speaker 1: that's electing a Democrat has Democratic voters and Republicans to
Speaker 1: keep the example very simple, then those extra thirty percent
Speaker 1: of Democratic voters, those votes are kind of wasted. They
Speaker 1: could have been put into other districts. And so if
Speaker 1: you see much more of this happening on the on
Speaker 1: the two Democrats and Republicans, you have this kind of asymmetry,
Speaker 1: then that shows you, um, that there could be a
Speaker 1: partisan Gerrymager Plane put that standard out there. The Court
Speaker 1: partially adopted it, and it's going to be one of
Speaker 1: the many standards that are going to be put before
Speaker 1: Justice Kennedy as the case gets considered next term. About
Speaker 1: thirty seconds left of Josh, do you agree that Justice
Speaker 1: Kennedy will be the swing vote in this Yeah, He's
Speaker 1: absolutely the swing vote because he's uh, he said in
Speaker 1: that two thousand and four case. Um, I don't like
Speaker 1: any of the standards out there, but I'm open to
Speaker 1: a standard emerging uh if if if someone who's really
Speaker 1: smart can come up with it, and so he apparently
Speaker 1: is still actively looking and so he's the old ball game.
Speaker 1: Thank you both for being on Bloomberg Law. That's Josh Douglas,
Speaker 1: professor at the University of Kentucky School of Law, and
Speaker 1: Rick hass And, professor at U c Irvine, also founder
Speaker 1: of the Election Law Blog, which we all follow.