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The Second-Worst President of the Millennium

Columns and commentary from the "New York" and Daily Intelligencer political teams, plus breaking news from New York and around the world.
TODAY’S CHAT: Maundering About Gerrymandering
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Maundering About Gerrymandering
I’m your humble host and editor Ezekiel Kweku, and today I’m talking with two members of New York's politics team — Jonathan Chait and Ed Kilgore — about why gun-control legislation is difficult to pass.
Ezekiel:   The Pennsylvania Supreme Court recently ruled that the PA GOP must draw a new congressional map, and SCOTUS is due to hear a bit gerrymandering case in Wisconsin. What’s the big-picture take here?
Jon:   The biggest big-picture point, I think, is that there is constitutional pressure on gerrymandering nationwide. Just as Baker v. Carr forced districts to have equal population, ending a major source of overrepresentation for rural America, we may be headed toward some limits on gerrymandering, which would somewhat equalize the advantage rural and red America has in legislatures at both the state level and Congress.
Ed:   Traditionally, partisanship was considered a perfectly legitimate (constitutionally at least) grounds for drawing a map. So long as you followed the Baker v. Carr equality of population guidelines, and didn’t run afoul of the Voting Rights Act, you could do what you wanted.
Jon:   Two new trends have changed the old calculation: (1) The growing urban-rural partisan split, which makes it easier to pack Democrats into vote sinks, and (2) technology that enables more precise gerrymandering. It's just so obvious now that mapmakers have all the control.
Ed:   And in reaction, social scientists have devised a measurement of partisan vote dilution — called the “efficiency gap” — to give judges an objective standard for excessive gerrymandering.
Jon:   Zooming back in to Pennsylvania, if it's a big Democratic wave, it won't make a huge difference. But the map puts a floor on Democratic gains. And as Ed indicates, we are developing empirical tools to measure gerrymandering, which are giving judges some guidelines to creates remedies.
Ed:   Getting back to the law, SCOTUS will consider lower-court decisions finding excessive partisan gerrymandering in two states some time this term. The decision, like so many others, will probably come down to Kennedy. But as a sort of appetizer, the Pennsylvania Supreme Court found its state’s congressional map to be an unlawful partisan gerrymander under the State Constitution. Using the kind of logic (and measurements) that supporters of reform are hoping SCOTUS adopts, particularly for the Wisconsin case.
Ezekiel:   Any premonitions about where SCOTUS will land? What do your visions say? Tea leaves? Trick knees?
Ed:   Like I said: It’s up to Kennedy to decide whether the “efficiency gap” is a workable standard in such cases. If not, I’m guessing the social scientists need to go back to the drawing board. Ezekiel: How worried, generally, are folks that the tools for analyzing gerrymandering are becoming more algorithmic and less intuitive for laypeople to understand, given that judges are laypeople?
Ed:   Well, there’s a real fear that Kennedy will say, “I don’t get it.”
Jon:   It seems like a real possibility.
Ed:   There’s a side issue, too: PA legislators have been trying to get SCOTUS to overturn the PA court’s decision on grounds that the U.S. Constitution gives legislatures the sole power to draw maps. This effort failed a couple of weeks ago, when Justice Alito (the justice with jurisdiction over emergency appeals from this particular state) said no to an appeal for a stay. But they’re still trying, focusing now on alleged due-process violations by the elected Democrats of the state court. It’s probably not going to work, since SCOTUS doesn’t really want to get into the business of second-guessing state constitutions.
Ezekiel:   Big picture again for a second — is gerrymandering more or less important than people appreciate? Are we looking at seismic shifts, marginal ones, or is it hard to say?
Ed:   Depends. We are in a strange moment when largely Democratic voting states are operating under egregiously Republican maps in states with a lot of changing dynamics, thanks to the 2010 elections, just prior to the last decennial redistricting. Florida, Pennsylvania, and Michigan are pretty extreme situations. And while most people are focused on the 2018 impact for obvious reasons, more important will be the impact on the new round of mapmaking that begins in 2021. Excuse me, add Wisconsin to the list of egregious GOP gerrymanders.
Jon:   It's less important than Democratic activists think, but more important than the general public thinks.
Ezekiel:   Do either of you have a ballpark figure about the number of House seats at stake here, generally?
Ed:   In PA and the two states where SCOTUS will hear cases, maybe six or seven (and in Maryland, it’s a Democratic gerrymander in question). If expanded nationally, yeah, it could be 15 to 20, but it all depends on what we are comparing it to.
Jon:   If SCOTUS made an aggressive anti-gerrymandering ruling, I think it's on the order of 10 to 15 nationally. Maybe 22, per the AP.
Ed:   Hah, hadn’t seen the AP estimate, but I was close! We may be on the brink of a big change in redistricting reform from procedural stuff like independent commissions and pretty maps to a constitutional requirement of partisan fairness. All depends on SCOTUS at this point, but the PA Supreme Court pointed the way.
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