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The EPA’s Crucial and Unsung Role in Puerto Rico and the Virgin Islands

After a major hurricane there is an urgent need to rebuild the infrastructure needed for clean water and sewers. The EPA has a critical role to play in that effort. Here flooding is shown in Carolina, Puerto Rico, after Hurricane Maria. Photo: Sgt. Jose Ahiram Diaz-Ramos/USDA (Flickr)

The recent hurricanes have spotlighted the federal government’s crucial role in response and recovery. But much of the coverage has focused on FEMA, funding, and the US military. Rarely in the news—and yet critical to response and recovery efforts—is the work of the Environmental Protection Agency.

During the Trump administration, the EPA has seen cutbacks in staff, major funding reduction proposals, and a real change in culture. And while much of the public discussion about the EPA has focused on its regulatory role, there is far more to the agency than just regulation—and all of its functions are being affected by recent changes.

To understand why we need a strong and capable EPA to respond to disaster like Hurricane Maria (and Irma and Harvey) I spoke with two former leaders of EPA, Thomas Burke and Stan Meiburg. Dr. Burke served as the EPA Science Advisor and Assistant Administrator for Research and Development until the end of the Obama Administration. Now on the faculty of Johns Hopkins, he is widely recognized for his work in public health and risk assessment.

As he emphasized, “EPA has a very important role because Maria is, unfortunately, first and foremost an environmental disaster… the biggest challenge is that there is a fundamental change in risks to the populations in island communities and coastal areas.”

Before the storm

Stan Meiburg served as the Deputy Administrator of the EPA from 2014-2017. In his 39 years with the agency he worked in both regional offices and headquarters. He is now on the faculty of Wake Forest University directing their sustainability program.

Dr. Meiburg explained that the EPA’s role begins before a storm like Maria hits. Hurricane forecasting, by NOAA’s National Hurricane Center, has come a long way over the last few decades, so EPA officials watch closely as a hurricane intensifies. At the EPA, the job of preparing for the storm means activating the incident command center at the EPA Regional Office (Region 2 in New York for Puerto Rico and the USVI), Dr. Meiburg explained. The regional office of EPA includes about 40 permanent staff in Puerto Rico itself and has experience with the communities at risk from the oncoming storm. To the extent possible, the agency also pre-deploys mobile labs and other equipment—a task that naturally presented a special challenge for the islands.

As the regional office begins this work, Dr. Burke noted that the EPA also must mobilize on a broader scale. “EPA should be at the table for the national effort coordinated at the highest level with the National Security Council with FEMA, Department of Defense, Health and Human Services, and Center for Disease Control. It’s a team approach,” he said, adding that “the military is great because they have the capabilities to do the heavy lifting, but they constantly need scientific guidance. They constantly need analytical capability and risk assessment. That’s the role for the EPA at all levels.”

Recovery

After Hurricane Maria passed, its devastation became apparent as island officials described the enormity of the humanitarian crisis. Dr. Burke explained that, for the EPA, the focus must be “all about exposure and getting back the necessities of life.” As he put it, “you need the folks who know the water systems—who can be out there to assess water quality, damage to infrastructure for waste water treatment or the drinking water system to make sure people aren’t exposed to waterborne diseases and contaminants. That’s EPA.”

Dr. Meiburg agreed. He stressed that electricity is the dominant concern because, without that, it is difficult to deal with anything else. He noted that the decision to put the Army Corps of Engineers in charge of rebuilding the electric grid makes a lot of sense. But the next urgent need is to rebuild the infrastructure needed for clean water and sewers, as well as waste disposal (including for the debris from the storm). In that effort, he says, the EPA has a critical role to play. Dr. Burke pointed out that with water, sewer, and disposal systems down, the risks from both waterborne and vector-borne (e.g., mosquitoes, rats) disease can very quickly rise. And the EPA is the agency with expertise with pesticides and other control methods.

Dr. Meiburg also pointed out several other high-priority efforts for the recovery that EPA must staff. The integrity of Superfund hazardous waste sites must be checked as soon as possible, he said.  Industrial facilities need attention for leaks, spills, and in their restart operations. And hazardous waste from both commercial and household sources are a difficult and dangerous problem in wake of the storm.  All of these require staff and other resources. And the problems are urgent.

The long road

Given the scale of the disaster in Puerto Rico and the USVI, indeed throughout much of the Greater Antilles, the recovery road is a long one—even with a massive effort. Both Drs. Burke and Meiburg emphasized the need for EPA to have a sustained presence on the islands, as well as in the other areas impacted by hurricanes over the last month or so. That means that the agency will have extraordinary responsibilities that will require the staff and resources to provide the help that’s urgently needed.

Rebuilding critical infrastructure means constant attention from scientists and engineers in the agency. It also means deep and sustained coordination with the Commonwealth’s government as well as in the USVI.  As Dr. Burke noted, “it is all about human health.” That means the EPA regional office, the EPA national laboratories and headquarters staff must take on huge additional responsibilities.

The Environmental Protection Agency is a crucial national asset, every bit as important as the military in responding to humanitarian crises. Its staff needs our appreciation, but more than that, they need adequate resources and support to effectively do their vital work.

The Trump Administration Fakes Science to Justify Restrictions on Birth Control Access

The Trump administration is using bogus science to justify restrictions on birth control access, building on a legacy of Presidential administrations' politicization of science around contraceptives. Photo: www.quotecatalog.com

Birth control access is now the latest casualty in the Trump administration’s attacks on science. Last Friday, the administration issued rules that roll back the birth control mandate of the Affordable Care Act, i.e. the guarantee that insurance companies cover birth control whether they like it or not.

This means that companies can now more easily refuse to cover birth control costs for their employees. The administration claimed that scientific evidence supported their decision, but like many things with this administration, they got the science all wrong.

Here is a sampling of the actual science that the administration questioned or misrepresented

1) Birth control works and access to it reduces unwanted pregnancy. The administration’s rules question this long understood science. Since the introduction of the pill decades ago, medical professionals have documented the effectiveness of contraceptives in preventing pregnancy.

At the community scale, scientists also observe that access to birth control reduces rates of unwanted pregnancies, births, and abortions. One important study known as the Choice Project gave free contraceptives to teenagers in St Louis. The results showed that pregnancies, births, and abortions reported were half compared to the national average.

2) Contraceptives have many health benefits. The administration misrepresented the science on the benefits and risks of birth control, claiming that use of contraceptives may lead to riskier sexual behavior. But scientific evidence doesn’t support this.

Studies have not found increases in riskier sexual behavior following access to free birth control. In the Choice study mentioned above, participants reported no change in their sexual activities after receiving contraceptives. It is also worth mentioning the myriad reasons that women are on birth control. In addition to the benefit of having control over family planning, contraceptives are also used to treat other medical conditions, such as excessive menstrual bleeding and pre-menstrual syndrome symptoms.

3) Health risk from contraceptive use is extraordinarily low. The Trump administration emphasized risks and downplayed benefits of birth control, a key tactic often used by those who want to disparage scientific evidence. For example, the administration’s rules emphasized the risk of blood clots from birth control use. This risk does exist (on the order of 5-12 cases per 10,000 births) but scientists point out that your risk of blood clots during pregnancy is higher. And of course, this risk is far lower than risks involved in other things people regularly engage in, like riding in a car, taking a flight, and living with a city with air pollution. Emphasizing this risk as a justification for restricting access to the birth control is disingenuous.

A history of politicization of the science on birth control

Unfortunately, the Trump administration isn’t the first to politicize birth control. In the modern era, several presidential administrations have inserted politics into what should have been science-based decisions on birth control access.

Under the George W Bush Administration, political officials went against the scientific community and restricted access to the emergency contraceptive Plan B One-Step. While the product was shown to be safe and FDA scientific advisory committee members overwhelmingly recommended (23 to 4) that the drug be available over the counter, FDA officials, with involvement of the Bush White House, failed to take the scientific advice and kept access to the drug restricted.

Despite public outcry and legal challenges, the administration continued to delay making a science-based decision, ultimately resulting in the resignation of the FDA director of the Office of Women’s Health Susan Wood. In a resignation email, Wood wrote “I can no longer serve as staff when scientific and clinical evidence, fully evaluated and recommended for approval by the professional staff here, has been overruled.”

Under the Obama Administration, too, we again saw political interference in contraceptive science. President Obama’s Health and Human Services (HHS) Secretary Kathleen Sebelius failed to make Plan B emergency contraceptive available over-the-counter for all ages despite science demonstrating it was safe. The FDA’s own scientists made clear the drug was safe and FDA commissioner Margaret Hamburg agreed. But in a bold and unprecedented move, the HHS secretary publicly overruled the FDA commissioner. Shockingly, Secretary Sebelius and the administration claimed that it was uncertainty in the science showing how safe the drug was that caused the political move.

President Obama was quoted, “As I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old … should be able to buy a medication that potentially … could end up having an adverse effect.” This of course is out of context, as medications with far worse potential side effects are already widely available over the counter in drug stores across the country. Court battles ensued and Plan B One-Step was made available over the counter for all ages in 2013.

Dismissing the science, harming public health

In many ways, it’s strange that birth control has long been a victim of politicization. It is not only widely popular but the science is very clear. This is something we know very well. The health effects are minimal and the benefits are tremendous. This is a no-brainer.

If we’d like to improve public health outcomes, evidence tells us that we should make birth control widely available. Indeed, this is what many countries have chosen to do. Yet the Trump administration has chosen to sideline science at nearly every turn. Unfortunately, birth control is now joining the ranks.

Much to Grouse About: Interior Department Calls for Changes That Could Threaten Sage Grouse Protection

The sage grouse's survival is entirely dependent on sagebrush. Photo: Jennifer Strickland, USFWS

That the current administration places very little value on the merit of robust scientific evidence when considering its actions (or inactions) is no longer shocking, but it remains an intolerable practice. In this week’s episode of “How is the Trump Administration Dismantling Science-Based Protections?”, we visit the Interior Department’s decision to formally reconsider a widely heralded Obama-era agreement for protections of the greater sage grouse in the West.

On Thursday, the Interior Department published a formal notice of intent to rework 98 sage grouse management plans across the quirky bird’s 11 state range. This change comes after a mere 60 days deliberation by the Interior Department’s internal Sage-Grouse Review Team (appointed by Secretary Ryan Zinke) and Sage-Grouse Task Force (representatives of Governors of the eleven Western States) – and much to the chagrin of the many stakeholders who worked for several years to craft a cooperative land use agreement in an effort to protect the sage grouse and its habitat.

What’s the deal with the sage grouse?

The sage grouse is the chicken of the “Sagebrush Sea” — an ecosystem which is “suffering death by a thousand cuts”, as former Secretary of Interior Sally Jewell put it. Habitat fragmentation, invasive species, and wildfires in the sagebrush have all contributed to the decline of this magnificent bird.

Importantly Secretary Jewell worked to put in place federal-state partnerships in order to protect the sage grouse. In 2010 the FWS proposed listing the sage grouse under the Endangered Species because of the threats its survival faced. After much input from stakeholders and the public, the agency in 2015 chose NOT to list the species and instead put efforts into state management plans, assuring us all that states could put programs in place to ensure the bird’s protection.  With Secretary Zinke’s moves, we’re now paving over (perhaps literally) those state protection plans, leaving the sage grouse at least as vulnerable as it was when the FWS proposed listing it under the Endangered Species Act.

The sage grouse has long been caught in the crosshairs of political controversy, especially when it comes to undermining the science behind conservation efforts. For example, in 2004, Julie MacDonald, a political appointee at the Fish and Wildlife Service (FWS), altered scientific content in a report examining the vulnerability of the greater sage grouse, which was subsequently presented to a panel of experts that recommended against listing the bird under the Endangered Species Act (ESA)(read my colleagues’ thoughts on political interference in sage grouse conservation efforts here and here).

Ignoring the science

The Sage-Grouse Review Team (SGRT) recommendations include potentially removing or modifying the boundaries of critical habitat called sagebrush focal areas (SFAs), as well as setting population targets and captive breeding, and modifying or issuing new policy on fluid mineral leasing and development. Also worth noting is that an Obama-era moratorium on mining claims in six Western states recently expired, with no indication of renewal from Secretary Zinke.

The problem with the Interior changing the conservation plans is twofold: 1) the motivation for reviewing the sage grouse management plans was to “ease the burden on local economies” by opening protected lands to development, which could have negative impacts on already rapidly-dwindling sage grouse populations, and 2) reopening the plans could spell more trouble for recovery efforts and potentially force FWS to list the sage grouse under the ESA in the future, which is precisely what states wanted to avoid. The conservation plan is critical, but it only works with the agreed upon protections in place.

The decision to undo years of collaboration and compromise between federal, state, local, and tribal governments, NGO’s, scientists, industry, landowners, ranchers, and hunters in a matter of two months sends a loud message to the public that economic considerations prevail over scientific evidence, even at the cost of an entire ecosystem and the species dependent upon it.

The SGRT recommendations ignore the science and put the entire sagebrush landscape at risk, much to the detriment of the sage grouse. Wyoming Governor Matt Mead is critical of the new plan, concerned that it ignores scientific consensus. “We’ve got to have good science lead the way, and that trumps politics,” Mead said. “Let’s look at what the states have done, and what biologists, folks who know this, are telling us.”

Sage advice

We cannot allow our government to irresponsibly cater to oil and gas industry at the expense of our wildlife and public lands. Instead, we must urge the Department of Interior to focus their efforts on collaborative, science-informed management of the sage grouse and its habitat.

Jennifer Strickland, USFWS Wikimedia Commons

What’s Tax “Reform” Got to Do with Science and Public Well-being?

Photo: USCapitol/Flickr

In the days since the “Big Six” group of Congressional leaders and Trump administration officials unveiled the outlines of their tax “reform” proposal, there’s been a fierce debate—and rightly so—over who stands to win and who lose. Will the average working American get anything significant from this tax plan, or are most of the benefits skewed towards the wealthy and profitable corporations?  More on this in a minute.

What’s gotten less attention is the impact of this plan on the public science enterprise and the well-being of all Americans.

An unprecedented assault

Federal government investments in science research and innovation have led to discoveries that have produced major benefits for our health, safety, economic competitiveness, and quality of life.  This includes MRI technology, vaccines and new medical treatments, the internet and GPS, earth-monitoring satellites that allow us to predict the path of major hurricanes, clean energy technologies such as LED lighting, advanced wind turbines and photovoltaic cells, and so much more. The work of numerous federal agencies to develop and implement public and worker health and safety protections against exposure to toxic chemicals, air and water pollution, workplace injuries, and many other dangers has also produced real benefits.

These essential programs are already under unprecedented assault. UCS president Ken Kimmell has called President Trump’s proposed FY18 budget “a wrecking ball to science.” Others at UCS have detailed the devastating impacts of Trump’s proposed budget cuts on the Environmental Protection Agency, the Department of Energy, the Department of Agriculture, the Federal Emergency Management Agency, the National Oceanic and Atmospheric Administration, worker health and safety, the Forest Service, and early career scientists.

UCS and our allies are pushing back hard on these proposed budget cuts, and we remain vigilant to ensure that when Congress takes final action on the FY18 appropriations bills in December, these irresponsible cuts will be rejected.

All these programs (along with veterans’ care, homeland security, transportation and other infrastructure, law enforcement, education, and many other core government programs) fall within the non-defense discretionary (or NDD) portion of federal spending, which has been disproportionately targeted for spending cuts over the last decade. As an analysis by Paul Van de Water of the Center for Budget and Policy Priorities points out, “NDD spending in 2017 will be about 13 percent below the comparable 2010 level after adjusting for inflation (nearly $100 billion lower in 2017 dollars).”

Even if the draconian Trump budget cuts are beaten back, the very real need to increase spending on entitlement programs such as Social Security and Medicare, along with a push by many in Congress to maintain (or increase) defense spending, will continue to squeeze NDD expenditures in the years ahead.

Creating long-term pressure on essential programs

Here’s where the Republican tax plan comes in, as it will almost certainly reduce government revenues substantially and add to the national debt. While Treasury Secretary Steven Mnuchin told ABC News that the tax plan would generate higher economic growth rates and “will cut the deficit by $1 trillion,” few independent economists agree with that rosy outlook.

The Committee for a Responsible Federal Budget estimates the plan could increase the deficit by $2.2 trillion over the next decade; CRFB president Maya MacGuineas cautioned that “tax cuts shouldn’t be handed out like Halloween candy,” and said they “certainly don’t pay for themselves.”

Senate Republicans openly acknowledge that the tax plan will increase the deficit; the Budget Committee resolution that they plan to put before the full Senate for a vote later this month contains reconciliation instructions to the Finance Committee that would allow the deficit to increase “by not more than $1.5 trillion over the next 10 years.”

Deficit spending is sometimes justified, such as for investments in infrastructure, education, public health, and other forms of physical and human capital that more than pay back over time, or to kick-start the economy when unemployment is high. But that’s not the case here; as discussed below, the bulk of the benefits from this plan would flow to the wealthiest Americans, with low- and middle-income Americans receiving only modest direct benefits, if any.

Moreover, the resulting increase in the federal deficit would lead to louder calls for cuts in programs that benefit low- and middle-income Americans, including food assistance programs, student loans, unemployment insurance, economic development, and worker retraining.  As another analysis by the Center for Budget and Policy Priorities put it, “the majority of Americans could ultimately lose more from the program cuts than they would gain from the tax cuts.”

The government needs more revenue, not less

Looking down the road, it’s clear that the aging of the American population, continued increases in health care costs, the need to replace crumbling infrastructure, and other factors are creating pressure for federal spending to increase substantially over the next few decades.

The Center for Budget and Policy Priorities estimates that to accommodate these factors, federal spending will need to grow from 20.9 percent of gross domestic product (GDP) to 23.5 percent of GDP by 2035. This is largely driven by increased costs for Social Security, Medicare, and Medicaid; CBPP projects that defense and non-defense discretionary spending will decrease somewhat as a share of GDP over the next couple of decades. As the CBPP report observes, the need to increase federal spending is “hardly a controversial notion. Budget plans from such diverse organizations as the National Academy of Sciences, the Bipartisan Policy Center, and the American Enterprise Institute have reached the same conclusion.”

To keep the national debt from growing faster than the overall economy, CBPP estimates that annual budget deficits need to be held to an average of 3 percent of GDP; this in turn means that federal revenues should increase from some 17.8 percent of GDP in 2016 to at least 20.5 percent in 2035. There are any number of ways to do this, from closing special interest loopholes in the tax code to putting a tax on carbon dioxide emissions or other forms of pollution. Of course, given the current political realities in Washington, no one expects a serious discussion of this issue anytime soon; the current challenge is just to avoid making the situation worse.

Tax fairness: the rhetoric and the reality

President Trump and Republican leaders insist that their aim is to provide tax relief for the middle class, and that taxes won’t be cut for wealthy Americans; President Trump even asserted that this tax plan is “not good for me. Believe me.”

But a preliminary analysis of the framework by the Tax Policy Center found otherwise. While acknowledging that several details remain to be filled in, TPC estimates that in 2018 under the “Big Six” plan, “taxpayer groups in the bottom 95 percent of the income distribution would see modest tax cuts, averaging 1.2 percent of after-tax income or less. The benefit would be largest for taxpayers in the top 1 percent (those making more than $730,000), who would see their after-tax income increase 8.5 percent.”

Over half of the total benefit of the tax cuts would accrue to taxpayers in the top 1 percent, increasing to nearly 80 percent of the benefits by 2027. Others have examined how the elimination of the alternative minimum tax, the abolition of the estate tax, and several other provisions of the plan would personally benefit President Trump—and his heirs.

Private interests vs. the public good

It’s clear that the stakes in the tax debate now under way in Washington are not just about the critical issue of whose tax bills go down (or up) and by how much. The outcome will also have an impact on our ability to maintain America’s global leadership on scientific and medical research and technology innovation, improve air and water quality, avert the worst impacts of climate change (and cope with the impacts we can’t avoid), upgrade our transportation, energy, and communications infrastructure, and many other important issues.

It’s hard to dispute the need for real tax reform—a plan that clears away the dense thicket of special interest loopholes and simplifies the tax code, in a way that’s equitable to all Americans. But that’s not what’s on offer right now—instead we’re seeing a drive to give trillions of dollars in handouts to profitable corporations and the wealthiest Americans, while laying the groundwork for deep cuts in a broad range of important federal programs down the road.

Our elected officials can – and should – do much better than this; if they’re unwilling to, they should observe the Hippocratic oath, and “first do no harm.”

 

 

Sociological Gobbledygook or Scientific Standard? Why Judging Gerrymandering is Hard

In Tuesday’s historic Supreme Court case, the question asked was how to identify and remedy unconstitutional partisan gerrymandering, where electoral district boundaries are drawn so as to benefit one political party’s voters over others.  The phrase uttered during oral argument that is getting the most attention is Chief Justice Roberts’ assessment of the various techniques that have been proposed to measure it: “sociological gobbledygook.”  It’s a funny way to describe Roberts’ apparent distaste for mathematical, as opposed to legal, explanations, but it also reveals a serious problem for the use of scientific evidence in the court.

Let’s look at the evidence.

One of the core issues in these cases, as I’ve previously discussed, involves the discovery of “workable standards.”  To be workable, a standard must identify a constitutional (fundamental) harm, as opposed to a de minimus (minor) harm, so as not to inundate the court with cases.  Further, the standard must be capable of being practically applied by justices who are not themselves scientists.

Whether or not tests for the standard of partisan symmetry, the equal treatment of voters regardless of which party they support, are workable, was the primary point of contention when Justice Roberts made his remark.

In describing his concern about judicial overreach into the political process, Roberts proclaimed that “you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”

On the one hand, Roberts is identifying a serious problem that needs to be addressed by scientists in the courtroom.  Statistics can be manipulated and are open to interpretation in ways that other forms of legal evidence are often not.

In many cases, both parties trot out potentially motivated “experts” to exchange criticisms in specialized language, leaving judges to make decisions based on evidence that their educational background does not train them for.  Consider two examples taken directly from yesterday’s argument.

The term “false positives” was used by the defense (the state of Wisconsin) to refer to the inaccuracy of one way to measure symmetry, the efficiency gap.  “False positive” refers to a Type I error, when the test for something (like pregnancy, using a urine test that measures levels of the hormone chorionic gonadotropin) turns up positive, but has not actually occurred (no fertilized egg embedded in the uterus, which produces the hormone).  Pregnancy tests have about a 3% false positive rate.  But back to gerrymandering.

In this case, the claim of “false positive” was misapplied, and expanded to describe any state with a significant efficiency gap, where the plan was not drawn by the state legislature.  That is, the defense implied that districting plans not drawn by parties (those drawn by courts through litigation or by commissions, etc.) could not be biased.  But the efficiency gap is not a test of who draws a districting map, it is a measure of bias.

Even randomly drawn maps using computer simulations can result in quite biased plans, depending on the underlying geographic distribution of voters.  None of the justices seemed to pick this up.  Justice Alito, responding to such claims, expressed grave concern about “the dozens of uncertainties about this whole process.”

Worse still was Chief Justice Roberts’ mistaking of symmetry for “proportional representation, which has never been accepted as a political principle in the history of this country.”

Partisan symmetry is explicitly not a test of proportionality in election results (where a party receives the same percentage of seats as its percentage of votes).  In fact, symmetry was intentionally designed as an alternative standard of testing the principle of political equality in U.S. elections, because proportionality is a higher standard than what the Constitution demands.

These mistakes might have been avoided through a more thorough reading of the many scientific briefs offered to the court for review (or the video above).  Nevertheless, the burden is on scientists to communicate our work clearly and concisely to non-experts, otherwise this problem will only persist.

On the other hand, several of the Justices had a strong grasp of how scientific standards operate within the voting rights framework.  Justice Kagan, for example, correctly noted that both partisan symmetry and the one-person, one-vote standard (prohibiting unequally populated districts) address the dilution of voting strength for individual voters as a function of statewide plans, not single electoral districts.

Moreover, Justice Sotomayor, responding to the defense’s claims about inaccuracies in estimating the impact of Wisconsin’s plan, pointed out that “every single social science metric points in the same direction.”  That is the sort of understanding about probabilistic estimates that scientists need to convey to judicial authorities.  It is how scientists forecast everything from economic growth to health epidemics and weather patterns.  The Justice continued, noting that the same types of statistical estimates were used to create Wisconsin’s maps in the first place, and that “it worked.  It worked better than they even expected, so the estimate wasn’t wrong.  It was pretty right.”

Judges have their work cut out for them if the Supreme Court finally provides a means by which political parties can be restrained from advancing their partisan interests at the expense of voters’ fundamental right to an equally weighted vote.  But it is up to the scientific community to work with the judiciary in the appropriate application of statistical evidence.  The consequences, which feedback through the entire policy making process, make it well worth the effort.

Can Science (and The Supreme Court) End Partisan Gerrymandering and Save the Republic? Three Scenarios

Photo: Wikimedia Commons

On October 3, the US Supreme Court will hear a case concerning the state of Wisconsin’s legislative districts that could resolve a pending constitutional crisis and dramatically improve electoral representation.

At the center of the dilemma is the applicability of a scientific standard to measure discrimination resulting from district boundary manipulation. What’s new in this case is that social scientists have developed a standard. But what the court will do with it is anybody’s guess. So let’s guess.

We have a scientific standard that is discernible and manageable

Social scientists have been hard at work since 2004, when the Supreme Court issued a fragmented, 5-4 decision in Vieth v Jubelier holding that “plaintiffs failed to establish a standard” to determine when partisan gerrymandering has gone too far  The analytical tools for estimating various forms of partisan discrimination have dramatically improved since Vieth, as described in one of the many amicus briefs submitted to the court.

Consensus has emerged around partisan asymmetry as a scientific standard that is both discernible (logically grounded in constitutional protections) and manageable (so that courts can apply it). It measures any difference in the percentage of seats that a given percentage of voters (say 50%) receive, depending on what party they vote for. Asymmetries can be easily estimated with actual election results and computationally simulated vote swings across districts, along with measures of statistical confidence.

Similarly, the mean-median test, comparing each party’s actual vote share in its median district to overall mean vote share, is another way of estimating asymmetries between voters. There are important theoretical and methodological differences between various measures, including the efficiency gap, which compares “wasted” votes between parties. But all are empirically accurate at identifying partisan bias where it matters most: in competitive states where voters from one party have a major seat advantage.

However, the fact that a standard has emerged is no guarantee that it will be adopted. Attention will focus on convincing Justice Anthony Kennedy, who welcomed the discovery of “workable standards” as the swing vote in Vieth. His level of satisfaction with these results is likely to drive the justices toward one of the following three scenarios.

Scenario one: Kennedy keeps the Supreme Court out of the thicket

In a crushing defeat to defendants and electoral reformers in both parties, Justice Kennedy is unpersuaded, leading to another 5-4 decision in which the more liberal justices (Ginsburg, Breyer, Kagen, and Sotomayor) agree that symmetry is a workable standard, but they don’t have the votes. A plurality of the court’s conservatives either dismiss outright the idea that courts ought to be entering the political thicket of partisan competition, or they reassert a version of Antonin Scalia’s Vieth opinion, holding that symmetry is a standard measuring discrimination against parties, not people, with only the latter having constitutional rights (although it has been demonstrated that symmetry reflects individual political equality).

Kennedy writes a concurrent opinion with the conservatives, articulating a more nuanced failure on the part of plaintiffs to specify “how much is too much” as both plaintiffs and most of the scientific briefs submitted explicitly placed responsibility for specifying a threshold of unconstitutional discrimination with the courts. Kennedy could also point to in-fighting among political scientists over our favored measures as lack of consensus. Talk about a tragedy of the commons.

Scenario two: Wisconsin’s districts are thrown out, but the real work is left for future courts

A focused interrogation by Kennedy results in a majority opinion that overturns Wisconsin’s gerrymandered map. Several measures of bias are incorporated into a multi-pronged test that verifies if 1) the district boundaries caused the observed discrimination (asymmetry), and 2) the extent of asymmetry is not likely to be reduced through changing voter preferences. That is, even a “wave” of public opposition would allow the entrenched party to hold power.

However, the majority does not go so far as to prescribe a general threshold for “how much is too much” gerrymandering. There is no precise level of necessary asymmetry, or responsiveness, or competitiveness specified that constitutes a violation of equal protection or free speech. Standards are left to emerge through future cases, of which there are many. Some version of this outcome seems most likely, given the scientific consensus, the level of extreme gerrymandering witnessed in the 2011 redistricting cycle, and the bipartisan response to it.

Scenario three: A precise standard is adopted with clear direction for lower courts

In this third, and probably least likely scenario, the justices not only establish a multi-prong test to identify unconstitutional partisan discrimination, they also specify the degree of relief that discriminated voters are entitled to. The question of “how much is too much” discrimination is answered precisely through a specific measure, either when asymmetry would result in a single seat change, or change in majority control of a legislative body, or a mean-median difference greater than 5 percent (which is rare) or an efficiency gap greater than 7 percent (which is also rare), etc.

The court could apply the breadth of knowledge that we have to specify thresholds of tolerance, below which any hypothetical districting plan would be invalidated. But because the process of districting involves maximizing numerous conflicting principles, such as geographic compactness and bias, the justices are unlikely to go this far, at this time. And only time will tell if a more cautious approach will be adequate.

Can a constitutional crisis be averted?

If the Supreme Court fails to rein in partisan gerrymandering, the fundamental democratic principle of majority rule is undermined. The Electoral College has enabled minority control over the executive, and majority control of the Senate has been determined by a minority of voters due to the underrepresentation of large states.

In 2018, a majority as large as 56 percent of Americans could vote against the governing party (currently the Republican Party) in the House of Representatives, while they retain control of a majority of (gerrymandered) seats. It is up to the Supreme Court to re-establish a republic “of the people.”

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