Academic journal article The Journal of Law in Society

Remarks from the Journal of Law in Society and Levin Center Symposium

Academic journal article The Journal of Law in Society

Remarks from the Journal of Law in Society and Levin Center Symposium

Article excerpt

I will be discussing the associational theory of Justice Kagan's. I want to start off by flagging what an interesting development her opinion was in Gill v. Whitford. (1) Historically, and presently, almost all of the discussion of partisan gerrymandering focuses on how gerrymanders affect the number of seats that parties can expect to win. It is almost the definition of the term to think about the effect of district boundaries on one side's number of seats versus the other side's number of seats. However, Justice Kagan does not say that is the wrong way to think about partisan gerrymandering, but she does say it is not the only way to think about gerrymandering. Further, she says that there is another distinct injury that gerrymandering causes, beyond how it affects parties' seats--won or lost. In Justice Kagan's view, gerrymandering can impede important party activities, you know, central party functions. I would like to bring attention to the language from Gill v. Whitford and particularly this crucial sentence in Justice Kagan's opinion where she states what the party functions are that she thinks are undermined by partisan gerrymandering. She says:

"Members of the disfavored party in the State, deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidate to run for office (not to mention eventually accomplishing their policy objectives)." (2)

As an empirically minded law professor, when I read a Supreme Court sentence that says that something may cause, or may harm something else, my first instinct is to just ask myself is that true? If we looked at a bunch of evidence, would we find this positive connection between A and B? To answer this, I partnered with a political scientist Christian Worshaw, who is also an expert in a number of partisan gerrymandering cases, to do our best to test Justice Kagan's hypothesis about how gerrymandering might or might not affect the parties' associational activities.

Measures of partisan advantage

* Efficiency gap

* Partisan bias

* Mean-median difference

* Declination

* Aggregate of all these metrics

To start out, Chris and I had to come up with a metric for gerrymandering. We used several measures that are used by social scientists to capture a party's advantage or disadvantage from redistricting. Chris and I did not want to take a stand here about which of these metrics is better or worse than the other. Instead, we used them all. We recognized that some like the efficiency gap, others like the declination, and others like partisan bias, let's just use every metric that is out there in social science literature and let's also use an aggregate of all these metrics so, you know, let's combine all four of those metrics into a single uber metric and use that as well.

Party activities

* "Recruiting candidates to run for office": The proportion of seats not contested by a party

* "Recruiting candidates to run for office": The proportion of a party's candidates who are incumbents or have held prior elected office

* "Fundraising": The proportion of total campaign contributions received by a party's candidates

* "Generating support from independents": A party's statewide vote share

* "Accomplishing their policy objectives": The overall liberalism/conservatism of state policy outcomes

We then decided that we wanted to try to quantify as many as we could, of the associational activities that Justice Kagan talked about. One of those activities was recruiting candidates to run for office. One way to operationalize this activity was by looking at the proportion of seats that a party does not contest at all. If a party does not even run a candidate then clearly the party is not doing a great job of recruiting candidates to run for office. We operationalized this party activity by looking at the proportion of a party's candidates who are considered high quality candidates. …

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