The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after

Integrating a symmetry standard with compactness and other traditional districting criteria

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Integrating a symmetry standard with compactness and other traditional districting criteria

(1) The role of compactness and maintenance of previous boundaries in effects-based standards of unconstitutional partisan gerrymandering

Criteria such as compactness and respect for existing political boundaries are often used as proxies for partisan gerrymandering, but they are typically not very good proxies. One of us has previously emphasized the important point made in the plurality opinion in Vieth that “packing and cracking, whether intentional or not, are quite consistent with adherence to compactness and respect for political subdivision lines.”104 The fundamental issue in partisan gerrymandering cases in terms of effects is whether a districting plan unfairly burdens the representational rights of a particular political group, not whether or not districts look pretty.

Moreover, partisan bias is certainly not the only issue in gerrymandering cases. As Justices Stevens and Souter argued in Vieth, satisfying compactness considerations and other common districting criteria, such as respect for existing jurisdictional boundaries or not splitting communities of interest, are often important in and of themselves.105 That is, while violation of neutral standards such as compactness and contiguity are not, in and of themselves, direct evidence of partisan gerrymandering effects,106 using them can satisfy other legal rules and requirements and as such can enter into legal review of claims of the legality of a redistricting plan, once a prima facie level of unconstitutional partisan bias has been established.107 This can happen in two different ways: (a) when the burden shifts to the state to justify the level of partisan unfairness found in a plan, and the state argues that features of the plan that led to partisan bias were necessitated by the state’s compliance with neutral districting principles such as compactness (cf. part 2 through 4 of the four-part test from Brown v. Thomson quoted at the beginning of Section IV),108 or (b) when we enter the remedy phase of a trial if a court is faced with the task of drawing a plan of its own, or evaluating alternative proposed remedial plans.109

(2) The role of standard districting criteria in assessing partisan intent

We would point out that issues relating to the satisfaction of traditional districting criteria, both at the level of individual districts and in terms of overall features of a plan (e.g., average level of compactness, number of unnecessary crossings of political subunit boundaries) may be directly relevant to the issue of partisan intent even if not directly relevant to the issue of partisan effects. In Bandemer, the Supreme Court plurality regarded proof of intent to achieve partisan advantage as at best a minor and probably even an irrelevant part of a partisan gerrymandering claim, because the partisan concerns of line drawers who were placed by the political situation in a position to advantage their partisan cause via redistricting could more or less be taken for granted. But even if we grant that fact, exactly how legislators seek to achieve partisan advantage can still be relevant to determining intent to weight partisan considerations above all others to a constitutionally impermissible degree.
Here an analogy between redistricting and boxing may be helpful. In boxing, we take it for granted that boxers are seeking to knock each other’s heads off, yet we still distinguish between a legitimate knockdown and one caused by a low blow.110 A review of the features of a plan in terms of standard districting criteria (both at the level of individual districts and in the plan as a whole) can allow courts to assess intent so as to distinguish “normal” redistricting in pursuit of partisan advantage from cases where partisans engage in deliberately inappropriate and egregious manipulation of district boundaries – i.e., have sought to win by the redistricting equivalent of an impermissible low blow. In this context, Justice Stevens suggests in his opinion in LULAC (at pp. 30-32) multiple violations of standard redistricting criteria, coupled with other indicia that point to clear and unchecked partisan motive, may be interpreted as evidence that unconstitutional intentional partisan gerrymandering is going on.

But, in our view, we would not need to get to issues of intent until we had established that a “knockdown” (i.e., a magnitude of partisan bias that, on its face, rises to the level of a constitutional violation) had occurred. Only then would we need to consider the constitutional “legitimacy” of that knockdown in terms of factors such as motive. By leaving intent and other issues having to do with the shapes of the districts until a later stage if the inquiry – a stage that would not even be reached if there was not a clear legal determination of a level of partisan bias that met some prima facie standard of unconstitutionality – the courts considering partisan gerrymandering claims will have their task much simplified and made more manageable in that many partisan gerrymandering claims are likely to be thrown out at a very early stage in the proceedings.

Statewide versus district-specific measures of gerrymandering

Justice Breyer argued in Vieth for a state-wide test for partisan gerrymandering while Justice Stevens and Justice Souter (joined by Justice Ginsburg) argued for a more district-specific approach. In LULAC, however, Justice Stevens, while suggesting both an effects and purpose test of partisan gerrymandering that could apply to a single district (Part IV, pp. 30-32), also proposed an effects test for statewide partisan gerrymandering (Part III at n. 11, p28). 111 In our view as social scientists, in an effects-based inquiry into gerrymandering, both approaches are needed – but at different phases of the inquiry. Thus, with respect to the disagreements among the dissenting justices in Vieth about whether a standard should look statewide or be district-specific, substantial as this disagreement appears to be, we believe that the disagreement can resolved.

To the extent that the Supreme Court adopts partisan bias as a basis for estimating the magnitude of partisan gerrymandering effects, the test would necessarily involve calculations and results about the level of partisan bias in the plan as a whole. However, in reviewing the evidence for partisan gerrymandering, it is perfectly reasonable for courts to look to see whether particular districts in a plan exhibit high levels of “packing” or “cracking,”112 so long as these techniques of gerrymandering have an effect in terms of the deviation from partisan symmetry. Even more importantly, while partisan bias involves calculations for a plan as whole, judicial remedies for egregious partisan gerrymandering may often involve “unpacking” minority party voters and recrafting particular sets of districts113 that have been the special targets of gerrymandering efforts.114

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