The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry

While the Supreme Court in Bandemer v. Davis found partisan gerrymandering to be justiciable, no challenged redistricting plan in the subsequent 20 years has been held unconstitutional on partisan grounds. Then, in Vieth v. Jubilerer, five justices concluded that some standard might be adopted in a future case, if a manageable rule could be found. When gerrymandering next came before the Court, in LULAC v. Perry, we along with our colleagues filed an Amicus Brief (King et al., 2005), proposing the test be based in part on the partisan symmetry standard. Although the issue was not resolved, our proposal was discussed and positively evaluated in three of the opinions, including the plurality judgment, and for the first time for any proposal the Court gave a clear indication that a future legal test for partisan gerrymandering will likely include partisan symmetry. A majority of Justices now appear to endorse the view that the measurement of partisan symmetry may be used in partisan gerrymandering claims as “a helpful (though certainly not talismanic) tool” (Justice Stevens, joined by Justice Breyer), provided one recognizes that “asymmetry alone is not a reliable measure of unconstitutional partisanship” and possibly that the standard would be applied only after at least one election has been held under the redistricting plan at issue (Justice Kennedy, joined by Justices Souter and Ginsburg). We use this essay to respond to the request of Justices Souter and Ginsburg that “further attention … be devoted to the administrability of such a criterion at all levels of redistricting and its review.” Building on our previous scholarly work, our Amicus Brief, the observations of these five Justices, and a supporting consensus in the academic literature, we offer here a social science perspective on the conceptualization and measurement of partisan gerrymandering and the development of relevant legal rules based on what is effectively the Supreme Court’s open invitation to lower courts to revisit these issues in the light of LULAC v. Perry.Governmen

Candidate positioning and voter choice.

T his article examines a fundamental aspect of democracy: the relationship between the policy positions of candidates and the choices of voters. Researchers have suggested three "A key characteristic of democracy," Dahl (1971, 1) noted, is the "responsiveness of the government to the preferences of its citizens." Two mechanisms play central roles in promoting responsiveness, thereby fostering congruence between the preferences of voters and the policy positions of candidates. Voters in a democracy can select candidates that represent their views, and candidates can compete for votes by strategically taking positions that appeal to the electorate. Both mechanisms are important; each depends on the criteria voters use to judge politicians on the issues. A lively debate has focused on three theories about how voters judge the policy stances of candidates. The first, proximity theory, assumes that citizens prefer candidates whose positions are closest to their own. For example, a voter who favors a 5% increase in government spending on health care will be happiest with a candidate who advocates the same level of spending. The more a candidate's position diverges from the voter's, the less satisfied the voter will feel. The presumed positive relationship between proximity and satisfaction, Michael Tomz is Associate Professor