More on Standards and Statistical Measures of Partisan Gerrymandering 

 For those interested in more detail about the Texas Redistricting case, and associated Amici brief, that Drew Thomas wrote about a few entries ago, you might be interested in  The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry , by Bernie Grofman and me, forthcoming in the  Election Law Journal .  An abstract appears below. Comments welcome! 

 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 that a 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 .