McLaughlin & Stern Attorneys Steven Hyman, Alan Sash, Jacqueline Gerrald and Tracy Burnett File Amicus Brief with U.S. Supreme Court for Binghamton University Professors
By Eric Coker – Binghamton University News
Binghamton University’s Political Science Department is playing a supporting role in one of the U.S. Supreme Court’s key cases of the 2017-18 term.
Four faculty members – Jonathan Krasno, Michael McDonald, Daniel Magleby and Robin Best – and graduate student Shawn Donahue – filed an amicus curiae brief in September in Gill v. Whitford, a case that examines partisan gerrymandering. Justices heard oral arguments Oct. 3 and a decision is expected by spring.
An amicus curiae (friend of the court) brief offers relevant information that a court may wish to consider.
“There has been an explosion of proposals (examining gerrymandering) over the past eight to 10 years,” said Krasno, an associate professor who specializes in American politics, public opinion and campaign finance. “Ours is one of them. Ours is the best of them.”
Gerrymandering – or redistricting on partisan lines – has taken place in American politics since the late 18th century. But the legality of partisan gerrymandering was not tested until 1986 when the U.S. Supreme Court heard Davis v. Bandemer.
“The Court has been after an objective standard to measure a gerrymander – an objective measure linked to a constitutional harm,” Krasno said. “Courts have said: We’re not willing to declare this an actionable, partisan gerrymandering, because we’re not sure it is. But we are open to the notion that gerrymandering is a justiciable issue.”
That was what took place in 2004 when justices heard Vieth v. Jubelirer, a Pennsylvania-based gerrymandering case. Four justices held that the case was non-justiciable, but Justice Anthony Kennedy left the door ajar by seeking a clear standard for determining constitutionality.
Gerrymandering drew additional attention in 2011 after legislative districts across the nation were redrawn following the 2010 census. The districts were often redrawn in odd shapes that, at the least, raised eyebrows. This often led to Republicans capturing more state legislative and national congressional seats. In Wisconsin, a panel of three federal judges struck down a state Assembly map adopted by Republicans in 2011. That case became Gill v. Whitford.
“Gerrymandering essentially changes the way voters are aggregated in different districts,” Krasno said. “Everyone votes, but we are going to count this clump of voters together and that clump of voters together. It can create a bias – and the bias we think is most telling is the bias against majority rule or the bias for minority rule. A gerrymander in a place like Wisconsin can turn a minority of voters into a majority of seats.”
Krasno and McDonald are no strangers to the issue: Krasno is from Wisconsin and McDonald, a professor who specializes in legislative politics and representation, served as an expert witness in racial gerrymandering cases in the 1980s and 1990s. The pair presented a paper on gerrymandering in New York state, where they encountered a conference attendee who said he had a computer program that could generate gerrymandering maps.
Magleby, in conjunction with Daniel Mosesson, then an undergraduate student in the Watson School of Engineering, eventually created their own software that is capable of producing 10,000 legislative maps of a state like Wisconsin in five minutes. Team members have written a half a dozen papers on the topic over the past year and a half, including one in 2016 dealing with Wisconsin specifically.
“You say to a computer: You only know about residential geography. How many people live in a place? Draw me 99 districts of Wisconsin that are equal in population,” Krasno said. “And it does it.” Those maps provide a way to compare the districts the legislature created to an alternative set of districts drawn without political intent.
The team’s amicus brief, overseen by New York law firm McLaughlin & Stern (which includes Alan Sash ‘95), tells justices that it analyzed the mean and median in the 10,000 maps and the enacted Wisconsin map. The mean represents a party’s performance in an election, while the median district is the one that a party must carry in order to win a bare majority of Assembly seats. The difference between them is an indication of gerrymandering.
The “findings show that the Assembly boundaries enacted in Wisconsin substantially disadvantage Democrats beyond the effects of residential geography,” the brief reads. “This confirmed what the lower courts found – that gerrymandering occurred in Wisconsin. (Our) method of analysis does not rely on shapes, intent or subjective notions of fairness in the political process. It simply relied on data from elections immediately before and after the 2011 redistricting plus 10,000 computer simulations. Ironically, the same computers used to gerrymander detect gerrymandering.”
The 27-page brief also stresses that the workable standard and measurement sought by Kennedy has been realized.
“Over the past decade, advances in computer science and its application to political science created analytical tools that were not previously available,” the brief reads. “These tools detected gerrymandering in Wisconsin with ‘full analytical satisfaction.’ It is for this Court to decide whether this kind of gerrymandering is good politics or bad politics.”
Krasno admitted that he sees the brief as essentially directed at Kennedy, likely the swing vote in the case. The Court’s conservative bloc – John Roberts, Samuel Alito, Neal Gorsuch and Clarence Thomas – are thought to be skeptical that courts can (and should) determine the constitutionality of partisan gerrymandering. The more liberal justices – Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan and Sonia Sotomayor – are believed to disagree with their colleagues.
“There are a lot of amici filed,” Krasno said. “There’s no way to know who will read what or when or how. We think we have a good chance of being read because we wanted to keep our piece short. We tried to make a short and focused argument. We’re not making any legal arguments. We’re just making a straight-forward, empirical argument: There is evidence of vote dilution in Wisconsin. And here it is.”
If the Court rules that gerrymandering is illegal, “this will put the other 49 states on notice that they have to be careful with their plans,” Krasno said. But he added that there is a chance the case could be sent back to the lower court to discover more “compelling evidence” of gerrymandering.
“One possibility is that (the case) gets dragged back into court and we get to be the expert witnesses,” he said.”
With a paper planned on districts and gerrymandering in Ohio, the political team could potentially become in-demand, national experts on the issue.
“There are cases of gerrymandering at every level,” Krasno said. “We’re hoping to establish our approach and our shop as the place where people who are interested in fair districting can come and assess what they’ve done.”