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Judicial Watch • Gill v. Whitford amicus August 2017

Gill v. Whitford amicus August 2017

Gill v. Whitford amicus August 2017

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Tags:Polsby, Whitford, Gill, efficiency, curve, seats, Tufte, partisan, votes, POPPER, gerrymandering, appellees, Amici, Browning, PARTY, 2017, Amicus, 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: August 2017
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................2
ARGUMENT ...............................................................4 The Shape and Location the Curve That Central the
Efficiency Gap Theory Unsettled
Empirical Question. .........................................6
II. The Efficiency Gap Poor Tool
for Identifying Partisan
Gerrymandering. ............................................13
CONCLUSION ..........................................................16
TABLE AUTHORITIES
CASES
Davis Bandemer, 478 U.S. 109 (1986) ..............4,
Kumho Tire Co., Ltd. Carmichael,
...................................................... 526 U.S. 137 (1999)
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)
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)................8,
Gary King Robert Browning,
Democratic Representation and Partisan Bias
Congressional Elections, AM. POL. SCI. REV. 1251 (1987)..........
iii
Nicholas Stephanopoulos Eric McGhee,
Partisan Gerrymandering and the
Efficiency Gap, CHI. REV. 831 (2015) ...............................5
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)..................................14
Wendy Tam Cho,
Measuring Partisan Fairness: How Well
Does the Efficiency Gap Guard Against
Sophisticated Well Simple-Minded
Modes Partisan Discrimination,
166 PA. REV. ONLINE (2017),
https://goo.gl/mHTRQF.......................................12
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.
explained herein, central component Appellees
efficiency gap analysis indeterminate, and the
use this approach would lead courts invalidate
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. The parties have consented the filing amicus
briefs this case.
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. 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. J.S. App. 176a. The District
Court held nonetheless that, the facts before us,
the corroborative evidence aggressive
partisan gerrymander.
Id.
Regardless the
District Court disclaimer, Appellees are likely
reargue their theory the efficiency gap their
merits brief.
The sole focus this amicus brief will show
that the efficiency gap not reliable, either
standalone test for partisan gerrymandering
corroborative evidence that has occurred. This
because critical value that must known, and
must stable, for the theory workable
practice has not been empirically established.
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.
Unless and until this value known with certainty,
any attempt apply the efficiency gap will yield
only arbitrary and meaningless results. The Court
should not rely the theory this case, let alone basis for fundamentally remaking the law
partisan districting. See Kumho Tire Co., Ltd.
Carmichael, 526 U.S. 137, 159 (1999) (Scalia, J.,
concurring) (courts must seek exclude expertise
that fausse and science that junky
The Shape and Location the
Curve That Central the
Efficiency
Gap
Theory
Unsettled Empirical Question.
Anyone attempting compare the wasted votes two political parties particular jurisdiction
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
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
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
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.
related percentage seats should expect obtain legislative body.8 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, Whitford Nichol, No.
15-cv-421-bbc (W.D. Wis. Jan. 25, 2016), Joint
Appendix Vol. II, SA189 (applying standard
formula with three the exponent) and SA190
(graph the resulting curve). Appellees report necessarily admits, the use exponent three not theoretically required. instead approximation available empirical
data.
SA189 (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
See, e.g., Edward Tufte, The Relationship between Seats
and Votes Two-Party Systems, AM. POL. SCI. REV. 540,
544-45 (1973) (deriving curve); J.S. App. 42a 111 the curves give visual depiction how each party vote share relates the number Assembly seats that party likely
will secure
and the particular curve derived from are
empirical rather than priori conclusions suggests
why they are the wrong tools accomplish the wideranging redistricting revolution Appellees hope
achieve.
The simple fact that the value the crucial
exponent has not been empirically established,
either general matter particular cases. 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. But particular cases are not
decided average approximately.
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. SA213. 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 page SA213 were clock, this would 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. SA198 (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.
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 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 SA199. 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.10
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 reliable means
for doing so.
While this its most fundamental flaw, the efficiency gap
standard beset with technical problems. See Wendy Tam
Cho, Measuring Partisan Fairness: How Well Does the
Efficiency Gap Guard Against Sophisticated Well SimpleMinded Modes Partisan Discrimination, 166 PA. REV.
ONLINE (2017), https://goo.gl/mHTRQF. For example, the
efficiency gap unjustifiably more volatile when applied
smaller delegations (id. 10, 31-32); scores two sets
outcomes the same even though one the two could not
improved redistricting (id. 23); wrongly equates
wasted winning votes with wasted losing votes, and does
not recognize changes electoral competitiveness that matter great deal voters and politicians (id. 26-27, 33);
blind bipartisan gerrymanders (id. 35); and, strangely,
can find optimal efficiency whenever the vote splits 75-25 (id. 34). Professor Tam concludes that, [f]or ensuring partisan
fairness, the efficiency gap too easily fooled. Id. 36.
II. The Efficiency Gap 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. J.S. 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. J.S. 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 reverse the
judgment the District Court.
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
August 2017