Partisan Gerrymandering and the Constitutionalization of Statistics

• Publication year: 2019

Partisan Gerrymandering and the Constitutionalization of Statistics

Jacob Eisler

PARTISAN GERRYMANDERING AND THE CONSTITUTIONALIZATION OF STATISTICS

Jacob Eisler^*

Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court's most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy.

This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake.

The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.

This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.

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Introduction.............................................................................................981

I. Technical Gerrymanders and Unclear Precedent................986

A. The Modern History of Partisan Gerrymandering................... 987

1. Bandemer and Partisan Gerrymandering as a New Frontier .............................................................................. 987
2. Vieth and the Disintegration of the Doctrine ..................... 989

B. The Infiltration of Quantitative Methods .................................. 991

1. From Conceptual to Statistical Treatments of Gerrymandering ................................................................. 992
2. The Battleground in Lower Federal Courts: Quantification as the Pivot of Legality....................................................... 994

C. Gill v. Whitford: Amidst the Evasion, Hints of the Constitutionalization of Statistics ............................................. 997
D. The Substitution of Evidence for Principles ............................. 999

II. The Distinct Domain of Law: Principled Rights....................1001

A. The Principled Nature of Rights............................................. 1002
B. The Risk of Legislating from the Bench and the Gerrymandering Morass ........................................................ 1006

III. Rights Protection and the Limits of Quantification...........1009

A. Judicial Rights Enforcement as Principled............................ 1010
B. Rights as "Shadow" Policies and the Risk of Lochnerization 1012
C. The Twin Dangers of the Quantitative Turn for Partisan Gerrymandering ..................................................................... 1014

1. The Danger of Quantitative Fetishization ........................ 1014
2. Judicial Rejection of Technical Progress: "Gobbledygook" and Numerical Skepticism ................................................ 1016

IV. Toward a Principled Right for Partisan Gerrymandering 1017

A. Existing and Proposed Wrongs of Partisan Discrimination 1018

1. The Equal Protection Clause and the Inaptness of the Racial Analogy ................................................................. 1019
2. Associational Rights and Equalities of Outputs ............... 1022
3. Scholarly Innovations: The Prudent Turn Back to Constitutional Principle ................................................... 1024

a. Edward Foley: The Due Process Clause and Fair Play............................................................................ 1025
b. Michael Kang: The Invalidity of the Partisan Justification ............................................................... 1026

B. A Principle-Based Right Against Partisan Gerrymandering . 1028

1. Preventing Democratic Distortion from Partisan Competition: A Predominant Purpose Standard.............. 1028
2. The Bounded Role ofMetrics in Assessing Intentionality 1030

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3. Solving the Standing Problem: Clear Harm from Clear Wrongs, and Clarifying the Consequences of Judicial Intervention ...................................................................... 1032

Conclusion...............................................................................................1033

Introduction

It is the age of statistics. The quantitative analysis of data is transforming domains as diverse as romance,¹ finance,² and professional sports,³ and law cannot resist its influence.⁴ While quantitative metrics have long played a central role in areas of law such as contracts,⁵ securities regulation,⁶ and antitrust,⁷ enterprising scholars have applied data analysis to constitutional law and related topics.⁸ As constitutional law has typically been the domain of textual analysis, moral philosophy, and legal history,⁹ this shift is demonstrative of the prevalence of data analytic methods.

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The quantitative treatment of constitutional law is now poised to jump from the academy to the highest levels of legal precedent. With the current round of partisan gerrymandering litigation, anti-gerrymandering reformers have relied heavily on novel quantitative tools to provide standards that can identify illegal partisan gerrymanders. Partisan gerrymandering allocates voters to legislative districts by the voters' political affiliations.¹⁰ Critics of partisan gerrymandering have long argued that the practice undercuts representative fairness, impairs democratic accountability, and allows for corrupt entrenchment by the party in power.¹¹ However, since Vieth v. Jubelirer, a plurality of Justices have denied that courts can identify coherent standards for prohibiting partisan gerrymandering, and thus that the legitimacy of gerrymanders is a nonjusticiable political question.¹² Reformers offer a methodological solution in the latest round of litigation, arguing that quantitative tools can provide courts with dispositive indications of when illicit gerrymandering occurs.¹³

Reformers have achieved some resounding successes in the lower courts in the current round of partisan gerrymandering litigation.¹⁴ However, lower court

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judicial holdings reveal a remarkable pattern: where courts find statistics convincing, they find gerrymanders unconstitutional.¹⁵ Where claimants have not relied on statistics, or where courts have found statistics to have little bearing on the constitutional questions, courts have not found gerrymanders to be illegal.¹⁶ Moreover, even where reformers have used statistical indicia to convince courts that a gerrymander is illegal, neither the courts nor the reformers have clearly linked the metrics to constitutional doctrine. When the first of these cases, Gill v. Whitford, reached the Supreme Court, the Justices left open the question of whether statistics could inform constitutional rights.¹⁷ The law of partisan gerrymandering has thus evolved into a referendum on whether metrics can define constitutional law.

Judicial adoption of a radically new definition of rights as quantitative outcomes would be novel and problematic. It would transform the role of statistical analysis from providing evidence of rights violations to defining the content of rights.¹⁸ Government conduct might be lawful or unlawful depending upon (non)conformity to metrical tests. This would distort the role and nature of constitutional law. Rights are best understood as creating zones of protection that provide non-conditional weight to certain characteristics or activities.¹⁹ For example, the right to free speech or of freedom from illicit racial classification are enforced by courts whenever the government action in question infringes upon the zone of constitutional protection.²⁰ The invocation of such right does

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not hang upon the effect of the challenged government action,²¹ but rather only requires that the government action intersects a protected characteristic.²²

Conversely, rights defined by quantitative outcomes would turn courts into enforcers of policy outcomes. If courts identify constitutional wrongs whenever certain metrical thresholds are breached, they act as regulators who have concluded that certain outcomes are desirable.²³ For example, if courts were to determine that only certain tax rates were constitutional (as opposed to merely requiring that taxes be applied in a non-discriminatory manner),²⁴ they would act as an agency that set tax policy. In the partisan gerrymandering context, if courts were to conclude that fair representation required that districtings reflect the composition of voters by party identification, this would be a judicially enforced policy of proportional representation.²⁵ That the current litigation has invoked more complex quantitative indicia does not make the use of metrics to define constitutional rights any less a form of...