The origin, meaning, estimation, and application of the concept of partisan symmetry in legislative redistricting, and the justiciability of partisan gerrymandering. An edited transcript of a talk at the “Redistricting and Representation Forum,” American Academy of Arts & Sciences, Cambridge, MA 11/8/2017.
Here also is a video of the original talk.
While the Supreme Court in Bandemer v. Davis found partisan gerrymandering to be justiciable, no challenged redistricting plan in the subsequent 20 years has been held unconstitutional on partisan grounds. Then, in Vieth v. Jubilerer, five justices concluded that some standard might be adopted in a future case, if a manageable rule could be found. When gerrymandering next came before the Court, in LULAC v. Perry, we along with our colleagues filed an Amicus Brief (King et al., 2005), proposing the test be based in part on the partisan symmetry standard. Although the issue was not resolved, our proposal was discussed and positively evaluated in three of the opinions, including the plurality judgment, and for the first time for any proposal the Court gave a clear indication that a future legal test for partisan gerrymandering will likely include partisan symmetry. A majority of Justices now appear to endorse the view that the measurement of partisan symmetry may be used in partisan gerrymandering claims as “a helpful (though certainly not talismanic) tool” (Justice Stevens, joined by Justice Breyer), provided one recognizes that “asymmetry alone is not a reliable measure of unconstitutional partisanship” and possibly that the standard would be applied only after at least one election has been held under the redistricting plan at issue (Justice Kennedy, joined by Justices Souter and Ginsburg). We use this essay to respond to the request of Justices Souter and Ginsburg that “further attention … be devoted to the administrability of such a criterion at all levels of redistricting and its review.” Building on our previous scholarly work, our Amicus Brief, the observations of these five Justices, and a supporting consensus in the academic literature, we offer here a social science perspective on the conceptualization and measurement of partisan gerrymandering and the development of relevant legal rules based on what is effectively the Supreme Court’s open invitation to lower courts to revisit these issues in the light of LULAC v. Perry.
The concept of partisan symmetry
Plaintiffs ask this Court to do what it has done many times before. For generations, it has resolved cases involving elections and cases on which elections ride. It has adjudicated controversies that divide the American people and those, like this one, where Americans are largely in agreement. In doing so, the Court has sensibly adhered to its long-standing and circumspect approach: it has announced a workable principle, one that lends itself to a manageable test, while allowing the lower courts to work out the precise contours of that test with time and experience.
Partisan symmetry, the principle put forward by the plaintiffs, is just such a workable principle. The standard is highly intuitive, deeply rooted in history, and accepted by virtually all social scientists. Tests for partisan symmetry are reliable, transparent, and easy to calculate without undue reliance on experts or unnecessary judicial intrusion on state redistricting judgments. Under any of these tests, Wisconsin’s districts cannot withstand constitutional scrutiny.
Methods for measuring partisan bias and electoral responsiveness
Paradoxical benefits of redistricting
Other Districting Systems
The 2000 U.S. presidential election rekindled interest in possible electoral reform. While most of the popular and academic accounts focused on balloting irregularities in Florida, such as the now infamous "butterfly" ballot and mishandled absentee ballots, some also noted that this election marked only the fourth time in history that the candidate with a plurality of the popular vote did not also win the Electoral College. This "anti-democratic" outcome has fueled desire for reform or even outright elimination of the electoral college. We show that after appropriate statistical analysis of the available historical electoral data, there is little basis to argue for reforming the Electoral College. We first show that while the Electoral College may once have been biased against the Democrats, the current distribution of voters advantages neither party. Further, the electoral vote will differ from the popular vote only when the average vote shares of the two major candidates are extremely close to 50 percent. As for individual voting power, we show that while there has been much temporal variation in relative voting power over the last several decades, the voting power of individual citizens would not likely increase under a popular vote system of electing the president.
A program for analyzing most any feature of district-level legislative elections data, including prediction, evaluating redistricting plans, estimating counterfactual hypotheses (such as what would happen if a term-limitation amendment were imposed). This implements statistical procedures described in a series of journal articles and has been used during redistricting in many states by judges, partisans, governments, private citizens, and many others. The earlier version was winner of the APSA Research Software Award.