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Judicial Watch • Gill v Whitford amicus 1161

Gill v Whitford amicus 1161

Gill v Whitford amicus 1161

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Tags:1161, Jackman, Whitford, Gill, efficiency, curve, seats, Tufte, partisan, votes, POPPER, gerrymandering, appellees, Amici, Browning, PARTY, Amicus, Wisconsin, Supreme Court, robert, district


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No. 16-1161 THE
Supreme Court the United States
_________
BEVERLY GILL, AL.,
Appellants,
WILLIAM WHITFORD, AL.,
Appellees.
_________ Appeal from the United States District
Court for the Western District Wisconsin
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT APPELLANTS
_________
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: April 24, 2017
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................3
ARGUMENT ...............................................................4
The Curve Which Efficiency Gap
Theory Crucially Depends Varies
Much Practice That Has Little
Value Measuring Tool...............................6
II.
The Efficiency Gap Generally
Poor Tool for Identifying Partisan
Gerrymandering. ............................................12
CONCLUSION ..........................................................15
TABLE AUTHORITIES
CASES
Davis Bandemer, 478 U.S. 109 (1986) ..............4,
Parrott Lamone,
2016 U.S. Dist. LEXIS 112736
(D. Md. Aug. 24, 2016),
appeal dismissed, 137 Ct. 654 (2017) ..............2
Vieth Jubelirer, 541 U.S. 267 (2004) ......................4
Other Authorities
Daniel Polsby Robert Popper,
The Third Criterion: Compactness
Procedural Safeguard against Partisan
Gerrymandering, YALE POL REV. 301 (1991) ...............6,
Edward Tufte,
The Relationship between Seats and Votes
Two-Party Systems, AM. POL. SCI. REV. 540 (1973)................7,
Gary King Robert Browning,
Democratic Representation and Partisan Bias
Congressional Elections, AM. POL. SCI. REV. 1251 (1987)................7,
Nicholas Stephanopoulos Eric McGhee,
Partisan Gerrymandering and the Efficiency
Gap, CHI. REV. 831 (2015) ......................5
iii
Philip Schrodt, Statistical Study the Cube Law Five
Electoral Systems, POL. METHODOLOGY (1981) ...........................9
Richard Pildes,
Why the Center Does Not Hold: The Causes
Hyperpolarized Democracy America, CAL. REV. 273 (2011) ............................ 13-14
Simon Jackman,
Assessing the Current Wisconsin State
Legislative Districting Plan,
Whitford Nichol, No. 15-cv-421-bbc
(W.D. Wis. Jan. 25, 2016),
ECF No. 1-3............................................... 10,
INTERESTS THE AMICI CURIAE1
Judicial Watch, Inc. Judicial Watch
nonpartisan, nonprofit 501(c)(3) educational
foundation that seeks promote transparency,
integrity, and accountability government and
fidelity the rule law. Judicial Watch regularly
files amicus curiae briefs means advance its
public interest mission and has appeared amicus
curiae this Court number occasions.
The Allied Educational Foundation AEF
501(c)(3) nonprofit charitable and educational
foundation based Englewood, New Jersey.
Founded 1964, AEF dedicated promoting
education diverse areas study. AEF regularly
files amicus curiae briefs means advance its
purpose and has appeared amicus curiae
this Court number occasions. this case, divided panel the U.S. District
Court for the Western District Wisconsin found
unconstitutional partisan gerrymander, relying
part what amici believe fatally flawed
theory about how identify such gerrymanders.
summarily affirmed, the decision will have adverse
consequences for state legislative redistricting
Amici state that counsel for party this case
authored this brief whole part; and person entity,
other than amici and their counsel, made monetary
contribution intended fund the preparation and submission this brief. Amici sought and obtained the consent the
parties the filing this amicus brief ten days prior its
filing.
efforts. explained herein, central component
Appellees efficiency gap analysis indeterminate,
and the use this approach would lead courts
invalidate redistricting plans where undue
partisan advantage apparent. Further, Appellees
approach poor indicator partisan
gerrymandering. Properly understood, simply
mechanism for guaranteeing proportional partisan
results. the same time, Appellees standard
ignores violations traditional districting criteria
like compactness, contiguity, and respect for
established political boundaries, which are the true
hallmarks partisan gerrymandering.
Amici are experts the important political and
constitutional
questions
concerning
partisan
gerrymandering that are raised the District
Court decision.
Amici believe, moreover, that
partisan gerrymandering gives rise justiciable,
constitutional claim, and they have argued for their
own standard based violations traditional
districting criteria. See Parrott Lamone, 2016 U.S.
Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal
dismissed, 137 Ct. 654 (2017).
Appellees, however, are using the wrong theory
and are measuring the wrong thing. Their proposed
standard would exacerbate rather than resolve the
difficult issues posed partisan gerrymandering.
SUMMARY ARGUMENT
Appellees argued the District Court that
efficiency gap analysis based the concept
wasted votes was the proper method identify
unconstitutional partisan gerrymandering. While
not adopting all Appellees analysis this point,
the District Court majority accepted
evidence partisan gerrymandering. Appellees, doubt, will raise the same analysis their
response Appellants Jurisdictional Statement.
Accordingly, order best assist the Court
considering this appeal, amici will address the single
issue the usefulness Appellees efficiency gap
standard identifying partisan gerrymanders.
Appellees approach depends one ability
determine the rate which votes would
translated into legislative seats fair (ungerrymandered) world. The efficiency gap then
computed comparing the actual rate wasted
votes such hypothetical ideal. the rate
translation not known, may not accurately
and particularly determined, Appellees theory
simply unworkable.
The mathematical tool for predicting the fair
translation votes seats single-member
districts the curve, which derived turn
from formula known the cube law politics.
But critical value this formula the exponent
from which derives its name determined
empirically, and real-world estimates that value
from particular electoral systems and particular
elections vary great deal. Indeed, the graphs
accompanying the complaint this action contain
anomalies which suggest that Appellees not know
the correct value that exponent.
Because
Appellees cannot accurately determine the shape
their curve, they cannot compare any actual
rate wasted votes hope use identify
partisan gerrymanders.
More generally, the efficiency gap approach
flawed because looks the wrong indicators
partisan gerrymandering and ignores the right ones.
Its use would import new proportionality
requirement into the constitutional law
redistricting. gives undue weight the outcomes close elections, which may have nothing with
gerrymandering. Meanwhile, fails see the
violations traditional districting criteria that have
always been recognized the distinctive marks
partisan gerrymandering.
ARGUMENT Davis Bandemer, 478 U.S. 109 (1986), the
Court first held that claim that political
gerrymander violated the Constitution was,
principle, justiciable. the three decades following
that decision, however, majority the Court has
ever agreed upon the proper standard for identifying
and adjudicating such claim.
See Vieth
Jubelirer, 541 U.S. 267, 281 (2004) (plurality
opinion) judicially discernible and manageable
standards for adjudicating political gerrymandering
claims have emerged their arguments before the District Court,
Appellees claimed have found the elusive
standard that would allow courts adjudicate
claims partisan gerrymandering: the efficiency
gap. This standard based the concept
wasted votes, which are defined all votes cast
either (1) for losing candidate, (2) for winning
candidate who already had the bare majority votes
necessary win. The efficiency gap simply
comparison
between
parties
wasted
votes.
Specifically, the difference between the parties
respective wasted votes, divided the total number votes cast the election. postulated that
efficiency gap favoring one party indicates partisan
gerrymandering.3
The majority opinion the District stated that was not adopting Appellees theory sufficient
test for partisan gerrymandering, asserting that
have not determined that particular measure [efficiency gap] establishes presumptive
unconstitutionality. App. 176a. The District Court
held nonetheless that, the facts before us, the corroborative evidence aggressive partisan
gerrymander. Id. any case, regardless the
District Court disclaimer, Appellees are likely
reargue their theory the efficiency gap their
response Appellants Jurisdictional Statement.
Nicholas Stephanopoulos Eric McGhee, Partisan
Gerrymandering and the Efficiency Gap, CHI. REV. 831,
851 (2015).
Id. 852 believe the gap the essence what
critics have mind when they refer partisan
gerrymandering.
Accordingly, the focus this amicus brief will
show that the efficiency gap not reliable either test for partisan gerrymandering
corroborative evidence that has occurred.
The Curve Which Efficiency Gap
Theory Crucially Depends Varies
Much Practice That Has Little
Value Measuring Tool.
Anyone attempting compare the wasted votes two political parties order determine the
efficiency gap immediately has address difficult
question: How much the observed gap between the
wasted votes the majority and the minority
parties expected single-member district
system like ours, and how much due partisan
self-dealing?
After all, not the case that any deviation
from the strict proportional representation voters party suspicious. For example, not
ordinarily expected that party commanding 55%
the votes will obtain 55% the available legislative
seats, that party garnering 70% the votes will
earn 70% the seats, and on. Rather, has long
been known that the single-member district system
used the United States confers victory bonus majority parties, which bonus increases the
size the majority increases.4 clear, this
See Daniel Polsby Robert Popper, The Third
Criterion: Compactness Procedural Safeguard against
Partisan Gerrymandering, YALE POL REV. 301, 312
(1991) has long been recognized, single-member district
bonus not attributable partisan manipulation,
but observed, structural feature our electoral
system. Thus, important find way
quantify the expected victory bonus, isolate from other, partisan considerations.5
Theoretical models attempting quantify this
natural bonus rely curve which correlates the
pro-majority bias the size the majority. The
formula for this curve operates raising the ratio
partisan votes particular exponent, order
calculate projected ratio legislative victories.
Because the exponent most often used three, the
formula has been dubbed the cube law politics.
This formula produces -shaped curve showing
the expected correlation between any percentage
votes cast for party general election, and the
related percentage seats should expect obtain legislative body.8
system inflates the majority party influence the
legislature beyond what its popular support warrants,
way that varies based the size its margin victory.
See Gary King Robert Browning, Democratic
Representation and Partisan Bias Congressional Elections, AM. POL. SCI. REV. 1251, 1266 (1987) (noting that the fact
that party received 55% the votes and 75% the seats
may indicate either severe partisan bias fair system with
majoritarian representation
Polsby Popper, supra note 312 52.
Id.
See, e.g., Edward Tufte, The Relationship between Seats
and Votes Two-Party Systems, AM. POL. SCI. REV. 540,
544-45 (1973) (deriving curve); App. 42a 111 the the District Court this case, Appellees
experts relied just such curve try
distinguish
partisan
self-dealing
presumably
associated with gerrymandering from the ordinary
victory bonus naturally achieved electoral
majorities single-member districts. expert
report specifically addressing this issue was filed exhibit the initial complaint. See Simon
Jackman, Assessing the Current Wisconsin State
Legislative Districting Plan Jackman Report
Whitford Nichol, No. 15-cv-421-bbc (W.D. Wis.
Jan. 25, 2016),9 ECF No. 1-3 (applying
standard formula with three the exponent) and
(graph the resulting curve). Appellees report necessarily admits, the use exponent three not theoretically required. instead approximation available empirical
data. Jackman Report (the Cube Law approximation for the lack proportionality
observe single-member district systems, though
hardly law. see King Browning, supra note 1258 and passim (at best the cube law
probabilistic, empirical finding, not deterministic
law). But this very fact namely, that the cube law
and the particular curve derived from are
empirical rather than priori conclusions suggests
why they are the wrong tools accomplish the widecurves give visual depiction how each party vote share
relates the number Assembly seats that party likely will
secure
Available online goo.gl/IjLcvx.
ranging redistricting revolution Appellees hope
achieve. begin with, the correct value the crucial
exponent subject considerable empirical doubt,
both generally and particular circumstances. See
Polsby Popper, supra note 312 actual
electoral systems vary widely, and index results
ranging from 0.71 4.4 have been obtained King Browning, supra note 1260 number
studies have shown that [the exponent] not equal although most find that [it] falls between
and Philip Schrodt, Statistical Study the
Cube Law Five Electoral Systems, POL.
METHODOLOGY 31, (1981) even cursory
examination election statistics shows that [the
cube law] does not hold perfectly. Even Great
Britain, where the cube law originated, [the
exponent] can vary much -.637 (1951)
4.233 (1955) between single pair consecutive
elections. Tufte, supra note 544-45 (disputing
empirical basis cube law); id. 546 (denying that
cube law applies certain electoral systems and
maintaining that [i]f one wants very crude
rule thumb summarizing the history votes-seats
relationship two-party systems, then the 2.5 rule preferable the cube law. Even slight change the key exponent would alter the entire curve,
and the range differences observed the above
authors significant. Furthermore, even one
were agree with those authors who maintain that
the exponent has average about (King
Browning, supra note 1260), would remain
just that average, approximation across
electoral systems and across time.
cases
are
not
decided
approximately.
But particular
average
Appellees own expert provided revealing look the messy reality American elections, which
cannot accurately described single exponent curve. Mr. Jackman plotted the seat and vote
shares 786 state legislative elections from 1972
2014 states. Jackman Report 33. The
resulting graph shows rough, slanted cloud data
points both above and below Appellees line perfect
efficiency. Id. particular interest are the data points that
graph indicating that party that garnered clear
majority votes actually obtained fewer seats than
the cube law curve would have predicted. (If
the graph were clock, this would include all the
data points between about 1:30 p.m. and 3:00 p.m.)
The very existence these cases poses challenge Appellees basic theory.
According Mr.
Jackman report, the parties who won these worth noting well that Appellees not even rely the cube law curve itself. Rather, they make further
approximation that curve, which for every one percentage
point gain vote share, seat share should two
percentage points. Jackman Report (describing orange
line). this means, Appellees pile one approximation top another and further diminish any empirical validity their
project might have. Note, too, that this two-percent estimate
itself subject empirical dispute. Compare Tufte, supra note 546 The rate translation votes into seats differs
greatly across political systems, ranging between gains 1.3
3.7 per cent seats for each 1.0 per cent gain votes.
elections obtained victory bonus all. Indeed,
they appear have suffered victory penalty.
The graph shows that some these victorious
parties attracted almost 70% the votes cast
epic landslide American standards. The fact that
they carried lower percentage districts than
expected single-member district system suggests
that deficits the efficiency gap (or being the
wrong side the curve) are not distinctive
hallmarks majoritarian, partisan gerrymandering. the alternative, suggests that Appellees have
put their curve the wrong place.
The uncertainty regarding the proper location
the curve insurmountable problem for
Appellees.
They seek nothing less than
constitutional revolution, which state legislative
enactments would overturned partisan
gerrymanders were found that majority party
wasted fewer votes, and minority party wasted
more votes, than expected given particular
winning margin for the majority. How many wasted
votes were expected for each party thus becomes
critical determination, and primarily based
Appellees calculation the curve. Mr.
Jackman explains, [t]he efficiency gap can
computed noting how far the observed [the
number seats] lies above below the orange line Figure Jackman Report 19. Thus, for
Appellees standard work, the orange line must the right place. not, Appellees risk
asking courts strike down redistricting laws even
though the majority party did not have more seats
than expected given the extent its victory
margin.
Stated differently, Appellees cannot
accurately identify when undue partisan
advantage has been obtained, they cannot accurately
identify partisan gerrymanders.
Before courts accept Appellees implicit
invitation become more heavily involved
political redistricting decisions, and review those
decisions based the efficiency gap, they must
certain that Appellees have way tell the
difference between expected and undue partisan
advantage. The efficiency gap, the cube law, and the
associated curve not provide any reliable
means for doing so.
II. The Efficiency Gap Generally Poor
Tool for Identifying Partisan
Gerrymandering. explained above, the efficiency gap standard impaired fundamental and unsolved data
problem that renders unworkable. addition, the
standard wrong principle. emphasizes
attributes electoral systems that not help
identify partisan gerrymanders, while ignores
features
that
are
characteristic
such
gerrymanders. the dissent rightly noted, Appellees proposed
standard would enshrine the Constitution right proportional representation.
App. 269a.
Admittedly, the efficiency gap standard would not
require favor strict, 1-to-1 proportional
representation, where particular percentage
votes would translate into equal percentage
legislative seats. Rather, the efficiency gap standard
would limit deviations from whatever level
representation was required the curve. This proportional representation well, because each
particular level voter support invariably
associated with particular level legislative
control.
But this kind proportional representation has
nothing with preventing gerrymandering.
Deviations
from
proportional
representation,
however defined, may occur for any number
reasons other than gerrymandering, including the
political views missteps personal qualities
the candidates one the parties. The absence
proportional representation does not uniquely
identify gerrymanders. any event, proportional
representation not required the Constitution.
The dissent also was right note that the
practical effect approach based the
efficiency gap unduly penalize losses close
elections, because that where the most votes are
wasted. App. 293a winning close elections the
surest way make sure the other side racks lots wasted votes But this fact does not tell
anything about gerrymandering, however, even
partisan intent present; simply means one side
won significantly more close elections than the
other. Id. Nor any change the rate which see close elections due gerrymandering. See
Richard Pildes, Why the Center Does Not Hold:
The Causes Hyperpolarized Democracy
America, CAL. REV. 273, 312 (2011) the
evidence that gerrymandering major cause the
decline competitive elections not powerful.
Most the increase safe seats over the last thirty
years, and the decline marginal seats has
occurred the years between redistricting cycles
Finally, Appellees approach identifying
gerrymandering
ignores
the
factors
that
commentators and the Court usually have viewed
typical signs the practice. gerrymander
properly, voters must placed within without
districts the basis their partisan affiliations.
Because voters typically not choose their place
residence favor politicians, electoral districts must stretched and shrunk include the partisan
mix voters that best suits the scheming
mapmaker. The inevitable result noncompact,
occasionally noncontiguous district boundaries that
needlessly cross existing political boundaries. These
are the true hallmarks partisan gerrymanders.
See Bandemer, 478 U.S. 173 (Powell, J.,
concurring part and dissenting part) (of the
factors that should guide both legislators who
redistrict and judges who test redistricting plans
against constitutional challenges, the most
important are the shapes voting districts and
adherence established political subdivision
boundaries (citations omitted).
CONCLUSION
For the foregoing reasons, amici Judicial
Watch, Inc. and Allied Educational Foundation
respectfully request that the Court note probable
jurisdiction or, the alternative, summarily reverse
the lower court decision.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
April 24, 2017