We’re going through the primaries for state legislators and members of Congress. It’s a mess. Some well liked and experienced legislators were thrown into the same districts so they had to compete and excellent legislators will surely be knocked out. But do the districts treat the two parties equally?
For years, each house of the New York legislature designed its own districts. And the majority party controlled the design of the congressional seats. New Yorkers rightly complained that legislators should not control the design of their seats and choose who could vote in their districts, thereby assuring their continuance in office and negating the voters’ power to kick them out.
New York and several other states recently turned to nonpartisan commissions and now a special master to design some of the New York legislative districts.[1] While this was going on, several cases challenging gerrymandering were brought to the Supreme Court. Plaintiffs brought to the Court carefully designed mathematical methods to test whether the selected design of legislative seats was a partisan gerrymander. One by one the US Supreme Court rejected every one of them. It rejected the neutrality or symmetry formula, which has long been treated as the gold standard among political scientists, in League of United Latin Am. Citizens [a/k/a LULAC] v. Perry.[2] It rejected the wasted votes formula, also known as the efficiency gap, in Gill v. Whitford.[3] It refused to treat partisan gerrymandering as a justiciable issue.[4]
So-called nonpartisan commissions are no substitute for a standard. That can be because the membership of such commissions can be gamed. It can also be because members of such commissions can be inexperienced or don’t understand the consequences of what they’re doing. Only by testing their results can we be sure that they have been fair.
A test is not a program that will write the districts. Each test can be satisfied in different ways. But whatever the choices, the tests can verify that the results will be fair to both of the major political parties. The commissions and the people that choose them will not be able to ordain a Democratic or a Republican result. That’s the people’s job.
Years ago, the New York Law Journal published my commentary[5] on the Supreme Court’s decision on some Pennsylvania gerrymandering. I used the decision to urge the use of the neutrality or symmetry standard.[6] A couple of years later I got a call from one of the nation’s top Republican lawyers. We were on opposite sides and he knew that, but my point was for fairness between the parties. He had read my op-ed and called as a curtesy to tell me that he was persuaded to try using symmetry in the LULAC case. A brief submitted by a group of eminent political scientists explained the symmetry test at length. So when the briefs were submitted and published, I looked for his. But he didn’t use the symmetry test. So I called him back. He told me he ran the numbers but it didn’t work so he left it out. He couldn’t use it if it would hurt his clients. In other words, the symmetry test worked well enough to dissuade a lawyer from using it when it revealed that his clients had written a partisan districting plan. If the Court had adopted the standard, we would have gotten the fair results many of us wanted, instead of the partisan results he wanted and got.
Nonpartisan commissions and court appointed special masters can sometimes be an improvement, but mathematical tests of their fairness make them even better.
[1] Matter of Harkenrider v. Hochul, 2022 NY Slip Op 02833.
[2] League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006).
[3] Gill v. Whitford, 138 S. Ct. 1916 (2018).
[4] Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
[5] In 'Vieth,' Court Continues to Misunderstand Gerrymandering, August 19, 2004, pp. 4, 7.
[6] Vieth v. Jubelirer, 124 S.Ct. 1769 (2004).
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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