By Professor Sam Wang, (H/T Princeton Election Consortium)
This week, the Supreme Court hears one last case on gerrymandering for the term. This one’s a racial-gerrymandering case, Abbott v. Perez. The history of the case is long and tortured – see Ian Millhiser’s summary. Also, here’s great coverage from Alexa Ura at the Texas Tribune.
This case is in a separate category than the partisan-gerrymandering cases (Whitford, Benisek, and Rucho), where there is an opportunity to create new guardrails. Instead, Abbott seems more a case study in how a dispute can be slow-walked – in this case since 2011. I agree with Millhiser that the slow-walking is upsetting. But it could arise from caution in the face of complexity (or in the partisan cases, the absence of settled doctrine). So one could justify that aspect of how gerrymandering cases are handled.
Millhiser is quite negative about the Court’s approach to gerrymandering. At the risk of sounding Pollyanna-ish, let me take a more positive view of where the Court may head in the future. Indeed, I see potential for substantial improvement, by expanding gerrymandering from race into the domain of party.
Expansion into the partisan domain is timely because polarization between the parties has escalated so much starting in the mid-1990s. The erosion of minority voting rights is an area of obvious concern, but even there, the Court’s record in redistricting is not all bad – see the Cooper v. Harris decision in North Carolina.
How can racial and partisan gerrymandering be combined? From the standpoint of best forensic practices, a suitable distinction might be between how to address cases involving (a) a very outnumbered minority (e.g. North Carolina African-Americans, or Maryland Republicans) or (b) two groups at near parity (e.g. statewide partisans in Wisconsin, Pennsylvania, or North Carolina). These require different approaches.
I wrote about the possibilities in the Harvard Law Review Blog and in our working paper. Our main focus in the piece was separating the two concepts of unequal opportunity and unequal outcomes. Under either concept, it is important to understand that the concept (whether opportunity or outcome) should be examined in multiple ways. Racial/partisan minorities require examination of single districts, whereas when the two parties are at near-parity, a statewide approach is necessary. If the Supreme Court adopts this logic, it will define a new right: the right of a whole party to be represented. That would be huge!
In the past, I have written about detailed math. But I think the math is beside the point. Indeed, a big intellectual step for the court will be to see that the many formulas all fit under a few principles. To read more, see our SSRN working paper.