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According to a the Washington Post's The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map.:

One thing that distinguished Whitford from the many previous unsuccessful challenges was that it was based on a First Amendment freedom of association test rather than a 14th Amendment equal protection test.

The quote refers to Gill v. Whitford.

According to Wikipedia's artice on Freedom of Association:

Freedom of association encompasses both an individual's right to join or leave groups voluntarily, and the right of the group to take collective action to pursue the interests of its members. Freedom of Association, The Essentials of Human Rights describes the right as coming together with other individuals to collectively express, promote, pursue and/or defend common interests.

How does the argument go that gerrymandering restricts freedom of association? Is this a new argument, or has it been used in the context of gerrymandering previously?


below: Illustration of gerrymandering from here.

gerrymandering

  • Which political party you join and support is an association. Partisan gerrymandering, the argument goes, punishes people (by reducing their voting influence) based on their political party. – David Schwartz Oct 2 '17 at 16:38
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    This seems more of an argument against geographic districts in general than against gerrymandering in specific. Consider how it applies to Massachusetts, Connecticut, and New York City. It's hard to make a charge of gerrymandering stick, but Republicans are still underrepresented in each of those places. – Brythan Oct 2 '17 at 17:38
  • The question I would add is - I can see the link between freedom of association and freedom of expression (first amendment/free speech). But the right is of association. Nothing guarantees that the association will have any specific efficacy or impact. Nothing seems to suggest a right or expectation of the association to have any effect, or that, whatever the chances of it having an effect may be, they will not be affected by external processes (deliberate or otherwise).. – Stilez Oct 6 '17 at 7:01
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It falls to the entire "voters choosing legislators vs legislators choosing their voters" meme.

If there is an objective criteria for drawing boundaries in a logical, geometrically simple method, then, for the most part, where I choose to locate my residence is my decision about what voting district I wish to inhabit.

If a district's boundaries are drawn in a geometrically bizarre fashion, to ensure one party or another has power, then I've been included in one "group" (4th Congressional District voters) and excluded from another (3rd District) without my consent and against my will.

Again, if there is an objective criteria, my district might still change with redistricting, but not with the conscious intent to force me into a particular group, as opposed to my district changing without concern or intent about which group I may or may not belong to.

I think that's the crux of that particular argument, based on the information you have in your question about it.

  • Interesting! I'd thought association referred to party but if I understand correctly, you are suggesting it refers to district. "...then I've been included in one 'group' (4th Congressional District voters) and excluded from another (3rd District) without my consent and against my will." Since district boundaries are de facto fluid and changing, is there really any expectation of freedom to associate with a particular district as there would be for party? – uhoh Oct 3 '17 at 0:04
  • This argument is an even greater argument against geographic districts than the legal argument that is actually being made. Note that in the original Yellow/Green example, there are two "logical, geometrically simple" methods that award Green 100% of the representation. One of those is explicitly illegal (each voter votes five times). The other is not illegal, but by this version of the freedom of association argument it should be. Doubtless the 40% Yellow would prefer to associate together and elect two Yellow representatives rather than join Green for five Green representatives). – Brythan Oct 3 '17 at 0:47
  • @Brythan - I'm dealing strictly with the highlighted text and the potential "logic" being applied. – PoloHoleSet Oct 3 '17 at 14:25
  • @uhoh - See my second to last paragraph, where I specifically address the idea of district boundaries being fluid, but not with specific intent to force someone or a group into a specific group for a desired probable electoral outcome. – PoloHoleSet Oct 3 '17 at 14:26
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The only current way a gerrymander is considered unconstitutional* is if it serves to disenfrachise protected classes (e.g. people of a specific race or religion, or probably things like gender). The "Freedom Of Association" argument is that because being able to join one party or the other is a voluntary association, political affiliation should be added to the list of protected classes.

*Or if the areas had different population sizes, so one Representative had 1,000 constituents, and another 1,000,000.

Previous objections to partisan gerrymander were about voting rights, that is that they were "wasting" your vote by packing you with like minded people, violating the idea everyone's vote should be equally valuable (that is, under the second, asterisked, reasoning). This failed, as the Supreme Court said it was a "political question". This, on the other hand, is claiming you are being discriminated against for party affiliation.

Please note that it would still be possible to have a partisan gerrymander. But there would be a burden put on the gerrymanderers to find a plausible reason to draw the map like that that wasn't partisanship based. And the Supreme Court may change that rule based on other cases they will hear in 2017.

  • Thanks for your explanation! In the constitution and its amendments, is there an "official list" or at least a generally accepted list of protected classes? – uhoh Oct 3 '17 at 0:09
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    Well, there are protected classes with regard to voting defined in the constitution. Article 6 prohibits descrimination based on religion. The 15th, 19th and 26th amendments protect based on race, gender and set the age limitation at 18. The 24th amendment outlawed poll taxes (which were used to disencfranchise the poor, usually black, voters) – Jesse Oct 3 '17 at 0:16

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