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Partisan gerrymandering and the constitutionalization of statistics

Partisan gerrymandering and the constitutionalization of statistics
Partisan gerrymandering and the constitutionalization of statistics
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, courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. Statistical thresholds have thus been enshrined as constitutional protections, and courts have recast themselves as agents of discretionary policy. This Article describes how this revolutionary change subverts the judicial role and undermines the rule of law. Constitutional law ensures that government conduct respects principles of neutrality. Government action is unconstitutional when it has intentionality that violates these principles. In other words, constitutional rights are ‘input-monitoring’, whereas data analysis can only produce informational outputs. Because quantitative methods cannot identify the inputs that violate principles, they are inadequate to define constitutional wrongs. The only appropriate role of metrical analysis is to provide evidence of any rights-violating intentionality. If quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches. 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.
D72, J16, constitutional law, election law, law and statistics, partisan gerrymandering, statistics and governance, supreme court, vieth, whitford
0094-4076
979-1035
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a

Eisler, Jacob (2019) Partisan gerrymandering and the constitutionalization of statistics. Emory Law Journal, 68 (6), 979-1035. (doi:10.2139/ssrn.3145191).

Record type: Article

Abstract

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, courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. Statistical thresholds have thus been enshrined as constitutional protections, and courts have recast themselves as agents of discretionary policy. This Article describes how this revolutionary change subverts the judicial role and undermines the rule of law. Constitutional law ensures that government conduct respects principles of neutrality. Government action is unconstitutional when it has intentionality that violates these principles. In other words, constitutional rights are ‘input-monitoring’, whereas data analysis can only produce informational outputs. Because quantitative methods cannot identify the inputs that violate principles, they are inadequate to define constitutional wrongs. The only appropriate role of metrical analysis is to provide evidence of any rights-violating intentionality. If quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches. 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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Accepted/In Press date: 10 March 2018
e-pub ahead of print date: 22 March 2018
Published date: May 2019
Additional Information: Unless otherwise indicated, each article, essay, comment, or other work published in an Emory Law journal is copyright by its author(s). Also unless otherwise indicated, the authors and the journal grant permission to reproduce and distribute for nonprofit educational uses material published in the journal, provided that: (1) in the case of copies distributed in class, students are charged no more than the cost of duplication; (2) the copied work is identified in accordance with the rules set forth in the current edition of The Bluebook: A Uniform System of Citation; and (3) proper notice of copyright is affixed to each copy. For permission to reproduce and distribute any work published in an Emory Law journal for other purposes, contact the work's author(s). All such reproduction must identify the author(s), the journal, the volume, the number of the first page, and the year of the work's publication in the journal.
Keywords: D72, J16, constitutional law, election law, law and statistics, partisan gerrymandering, statistics and governance, supreme court, vieth, whitford

Identifiers

Local EPrints ID: 423446
URI: http://eprints.soton.ac.uk/id/eprint/423446
ISSN: 0094-4076
PURE UUID: 86276f4d-653e-4c5c-8a21-6fce2b6ca59e
ORCID for Jacob Eisler: ORCID iD orcid.org/0000-0003-4422-5255

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Date deposited: 24 Sep 2018 16:30
Last modified: 07 Oct 2020 02:23

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Author: Jacob Eisler ORCID iD

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