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Fake news comes to the Supreme Court

Dana Milbank on

WASHINGTON -- Fake news has come to the high court.

At Tuesday's argument before the Supreme Court about gerrymandering -- the science of using map-drawing and Big Data to keep ruling parties in power even when a majority votes for the opposition -- Justice Samuel A. Alito Jr. was searching for a way to uphold the unsavory practice. But there was a problem: Gerrymandering is making a mockery of the right to vote in Wisconsin, the focus of the case before the court, where a redrawn map allowed Republicans to hold more than 60 percent of the state assembly while getting less than half the vote.

And so Alito resorted to subterfuge. He waited until the closing minutes and hit Paul M. Smith, the lawyer arguing against the Wisconsin plan, with the last question of the argument.

"You paint a very dire picture about gerrymandering and its effects," Alito said, "but I was struck by something in the seminal article by your expert, Mr. McGhee, and he says there, 'I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.' So he was wrong in that?"

The question baffled Smith, who said he would need to see the context.

"Well," Alito retorted, "that's what he said."

No, it isn't.

I called Eric McGhee, the expert, after the argument. The quote Alito pulled was not from the "seminal article" McGhee co-wrote proposing the legal standard for gerrymandering at the center of the case. It was from an earlier McGhee paper, using data from the 1970s through 1990s. In the paper at the center of the case, by contrast, "we used updated data from the 2000s," McGhee told me, "and the story is very different. It's gotten a lot worse in the last two cycles. ... The data are clear."

Why would Alito resort to this sleight of hand? Perhaps because it's clear that if he stuck to the facts, he'd have to acknowledge that the growing abuse of gerrymandering threatens democracy.

Political gerrymandering has become dramatically more precise in disenfranchising voters with the revolution in data analytics -- both in states such as Wisconsin and in Congress, where Democrats need to win the popular vote by more than seven points to break even in the House. (Democrats abuse gerrymandering, too, though they hold power in fewer states.) There's also no obvious legal reason that the court can't intervene to curb the practice on grounds of free speech or equal protection.

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