Tag Archives: partisan gerrymander

The Supreme Court and Republican Lies

By tmess2 | Published June 29, 2019

As we approach Independence Day, I tend to listen to my version of patriotic songs.  One of those songs is a Crosby, Stills, Nash, and Young track that they labeled as “49 Bye-Byes/America’s Children” (basically a modified live version of the Buffalo Springfield song “For What It Is Worth” a/k/a “There’s Something Happening Here” with an intro.)  Thursday’s Supreme Court Opinions brought to mind that intro — “Forty-nine reasons all in a line.  All of them good ones.  All of them lies.”

The most prominent example of this concept is the decision in the Commerce Department case concerning the census question.  The ultimate decision in this case was a 4-1-4 split.  On the one side, you had the four most conservative members of the Supreme Court.  These four did not care to look at the truthfulness of the reasons given for asking a citizenship question on the 2020 census.  It was enough that they thought that it was possible to make an argument with a sort of straight face that those reasons would justify adding the question to the census.  The four most liberal members thought that it was clear that the Administration had a solution designed to achieve a political end and went searching for a problem that would justify their proposal.  The deciding vote was Chief Justice Roberts who continued a history of occasionally throwing liberals a bone while pushing a conservative agenda.  Because he had the four conservative justices joining him on the conservative part of the opinion and the liberal justices joining him on the liberal part of the opinion, the Chief Justice’s opinion is an opinion of the “Court” (i.e. it had five votes, so it is precedent for lower courts).

The Chief Justice’s opinion first gives this Administration broad authority to act.  It finds few if any limits on the Census Bureau’s ability to place questions on the census in the statutes governing the census.  It also recognizes that the Census Bureau is entitled to use the census to obtain whatever information the Census Bureau (or the Commerce Secretary) deems is useful.  It also gives broad authority to the Commerce Secretary to determine what weight to put on the information developed by the experts in evaluating the potential questions.  So even though the best characterization of the record is that the question is likely to interfere with the primary goal of the census (an accurate enumeration of all people in the United States), the Commerce Secretary has the power to disregard that evidence as “speculative.”  Continue Reading...

Posted in Elections, Judicial | Also tagged , Comments Off on The Supreme Court and Republican Lies

Supreme Court — Eight Down, Twelve to Go

By tmess2 | Published June 22, 2019

On Thursday and Friday, the Supreme Court issued eight opinions in cases.  That leaves twelve cases still pending (including the two partisan gerrymander cases from March and the census case from April) heading into the last week.  Given that the Supreme Court has been issuing four opinions per day, it is likely that they will be adding two more opinion days to Monday’s opinion/order day.

The big story of this term continues to be that know precedent is safe from reconsideration by the “conservative” majority.  In four separate cases, there was a suggestion that the governing case be overruled or, at least, substantially modified. 

Gundy involved a provision of the Sex Offender Registration and Notification Act.  The provision occurs in the section governing when individuals subject to the Act need to register.  The other provisions in this section dictate when new offenders have to register.  The questioned provision leaves it up to the Attorney General to establish the rules for when prior offenders have to register.  For the first time in decades, the Supreme Court was considering whether such a delegation violated the non-delegation doctrine (barring giving legislative power to an executive official).  Prior to 1940, this doctrine was used to undermine the early regulatory agencies.  Currently, the rule is that — as long as the statute granting the power to adopt regulations contains some “intelligible principle” — the delegation is merely about how to implement the legislative scheme and is valid.  This case resulted in a 4-1-3 split (as it was argued in the first week of October before Justice Kavanaugh joined the Supreme Court).  The four in the majority found — given the rest of the act and the rest of the section — that the Act had the goal of eventually requiring all sex offenders to register and that the delegation to the Attorney General was merely to establish the timing of when prior offenders would have to register.  The three in the dissent declined to infer such a principle — broadly reaffirming the validity of the non-delegation doctrine and strictly reading the requirement for an “intelligible principle.”  The fifth vote in the majority came from Justice Alito who indicated that he wanted to reconsider the last eighty years of cases on the non-delegation doctrine and only voted in the majority because there are worse examples than the Act.  (Basically a dissenting opinion styled as concurring in the judgment because a 4-4 vote would have resulted in an order showing the lower court affirmed by an equally divided court without opinions setting the stage for a drastic revision of the non-delegation doctrine once Justice Kavanaugh is able to sit on one of these cases (which may take some time as many of the regulatory cases come from the D.C. Circuit).  Only time will tell what these revisions might mean for the Securities Exchange Commission, the Environmental Protection Agency, the Food and Drug Agency, and the Equal Employment Opportunity Commission. Continue Reading...

Posted in Judicial | Also tagged , , , Comments Off on Supreme Court — Eight Down, Twelve to Go

The Supreme Court and Redistricting — Again.

By tmess2 | Published March 9, 2019

Next Monday, the Supreme Court begins its March argument session.  Over the following two weeks, the Supreme Court will hear three case on redistricting.  These cases represent the fifth consecutive year in which the Supreme Court is looking at the rules for redistricting.  While memory is always a tricky thing, I can’t remember a redistricting cycle in which there were these many cases this late in the cycle.  At this point, these cases are more about setting the ground rules for 2021 than getting valid lines for the 2020 election (as, regardless of the decisions in these cases, the lower courts will not have much time to redraw the lines or have those new lines reviewed before 2020).

The session starts on March 18 with another look at the lines for the Virginia House of Delegates.  Two years ago, the Supreme Court found that the trial court applied the wrong standard in considering whether the Republicans in the legislature had improperly considered race in drawing those lines.  On the reconsideration ordered by the Supreme Court, the trial court changed its earlier decision and found that race improperly predominated in the line drawing decisions.  As with earlier cases this cycle, this latest racial gerrymander case involves the fine balancing of the interests of the Voting Rights Act (requiring the State to create majority-minority districts) and the Equal Protection Clause.  The question in these cases ultimately are two questions.  First, whether in the name of creating winnable districts for minorities, the legislature is actually engaged in packing more minorities into the district than is really necessary to meet the requirements of the Voting Rights Act.  Second, whether the districts created are such a departure from the normal districting principles that the lines are clearly the result of a racial gerrymander. 

In previous cases, the Supreme Court has rejected the concept of a one-size-fits-all approach to how many minorities an individual district must have to give minorities the ability to elect the candidate of their choice.  The last time that these districts were in front of the Supreme Court, the majority found that the record showed that the legislature had used such a mechanical rule, drawing the lines so that each of the twelve minority districts had a voting-age population which was at least 55% African-American.  The question on remand (and the issue on appeal) is whether that percentage was appropriate given the history of voting in these area and, assuming that it was not, whether the lines drawn were still appropriate give the other concerns (compactness, contiguity, incumbent protection, existing community lines, etc.) that traditionally govern the redistricting process. Continue Reading...

Posted in Civil Rights, Elections, Judicial | Also tagged , , , Comments Off on The Supreme Court and Redistricting — Again.

Supreme Court: Mid-term Update

By tmess2 | Published January 6, 2019

The  Supreme Court is set for a somewhat early start for its January arguments session.  While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term.  There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March.  There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.


Starting with the rearument case for January, that case is a Takings Clause case.  In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court.  Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court.  Conservatives do not like this rule and have been questioning it since it was created.  This case was originally argued in front of an eight-justice court in October.  Then it got set for re-argument in January.  While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie. 

Also up for argument in January is Merck.  As the party name should suggest, this case is about pharmaceuticals.  Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA.  If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn.  The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted.   The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted.  As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning. Continue Reading...

Posted in Judicial | Also tagged , , , , , Comments Off on Supreme Court: Mid-term Update

Supreme Court Preview 2018-19 Term: Part III (Rest of the Term)

By tmess2 | Published September 22, 2018

In Part I and Part II of this series, I discussed the highlights of the cases set for the October argument session and the November argument session.  Between those two months, the Supreme Court will hear 22 arguments on 23 cases.  As of this point in time, the Supreme Court has accepted 38 cases for argument.  That means that there are fifteen cases already accepted that do not yet have an argument date.  The cases for the December argument session will be announced in the next several weeks.  It is more likely than not that the Supreme Court will fill all the morning slots for that session (twelve cases).  The best bet will be that the Supreme Court will schedule the remaining three cases for the January argument session.  However, sometimes, the Supreme Court has scheduled afternoon argument sessions for December rather than carrying a case over to January.

Besides the existing cases that the Supreme Court will carry over to January, the Supreme Court will begin the process of filling the rest of the 2019 arguments sessions with its initial conference on September 24.   However, there are only a limited number of cases that the Supreme Court has to take.  Even with those cases, the Supreme Court can resolve those cases with a short unsigned (formally per curiam) opinion and does not have to accept full briefing and argument.  Everything else on the docket requires four justices to vote to accept the case.    Which means that the Supreme Court can decline to accept any case — no matter how important — because six justices do not want to address the issue at the present time or because they think that there is something unusual in the current case that interferes with reaching that issue.  Because, in a typical year, the Supreme Court gets over 8,000 petitions from parties that want the Supreme Court to take their case but grants review in less than 80 cases, it is hard to predict which cases will be accepted.   According to certpool.com, Monday’s conference will cover over 1,200 cases.  Even before relists (a decision by the Supreme Court to table a petition to a second conference before making a final decision — which has tended to become more common for cases under serious consideration in recent years), the October 5 conference will cover approximately 250 cases.   Even a site like Scotusblog which tries to list the most interesting of the petitions filed each week misses some grants and lists cases that are denied.  With all of these caveats, I will try to list some of the cases that appear to be in the pipeline that are of interest.

Among the cases already accepted, there are a handful that could have some significant impact.  For example, there is an anti-trust case looking at how to make the traditional rules fit apps for the I-phone.  Typically, Apple would be considered a mere intermediary between the purchaser and the suppliers and, thus, would not be subject to anti-trust claims.  However, Apple plays a unique role in the marketplace and does that unique role require anti-trust protection for both purchasers and suppliers.   Similarly there is a case (involving Merck) about the interaction between FDA labeling requirements and state “failure to warn” claims for the side effects of medications.   The Supreme Court has also accepted a case in which it may reconsider the “dual sovereign” exception to double jeopardy (basically that, if a defendant’s conduct violates the laws of multiple states or a state and the federal government, the defendant could be charged by both governments).  The Supreme Court will also consider whether the Excessive Fines Clause of the Eighth Amendment applies to the states and how that impacts civil forfeiture cases.  There are also two cases involving the relationship between treaties with two native tribes and state court jurisdiction over criminal matters.

The most political of the cases not yet set for argument is Nieves.  The issue is the elements of a claim asserting that a person was arrested in retaliation for exercising his free speech rights.  Law enforcement has asserted that, as long as there was actual probable cause (i.e. that there was an objectively valid reason for the arrest even if the motivation for the arrest was improper), the claim should fail.  The Supreme Court had a similar case this past term but ultimately opted to focus on the unique facts of that case without putting forth a rule that would apply generally.

Among the big cases that are in the pipeline is Rucho v. Common Cause, the North Carolina redistricting case.  As noted several weeks ago, this case was sent back to the trial court after the Supreme Court punted the Wisconsin case on standing.  The trial court found that there was no standing issue in this case and reissued its order finding that the North Carolina districts were an unconstitutional partisan gerrymander.  While North Carolina has not yet filed a notice of appeal, it is likely that it is coming.  This case falls into one of the categories that the Supreme Court has to take.  So it is more likely than not that this case will be argued in the Spring.  It is theoretically possible that the Supreme Court could find a reason to send the case back to the trial court without argument or summarily affirm, but my hunch is that the Supreme Court will have to resolve the issue that they punted in June — is a partisan gerrymander unconstitutional and what are the elements of such a claim.

There is also a pending petition for review on an issue that the Supreme Court avoided two terms ago — how the bar on discrimination based on gender in federal civil rights laws apply to transgender individuals.  While this question is a growing issue, it is also one that the Supreme Court might not wish to address.

More likely to get review is a case involving religious liberty filed by some conservative religious groups.  Apparently, a high school coach has a practice of kneeling at mid-field after every game.  His school district believes that it is inappropriate for teachers to engage in religious exercises while on the job and in the presence of students.  (Presumably the school district is concerned about the potential coercion placed on students to join in those exercises.)  The usual suspects have filed suit on behalf of the coach asserting that the restrictions and discipline imposed by the school district violates his free exercise rights.

There are also, as is the case every year, cases asking the Supreme Court to reconsider its rules governing deference to administrative agencies.  Depending upon who ends up replacing Justice Kennedy, the Supreme Court is likely to grant one of these cases in the next several years.

There are also several Eighth Amendment cases — some involving juveniles — with pending petitions.  Justice Kennedy was a swing vote on these cases.  Once there is a new justice, both sides are likely to be pushing to see if the change of justice will lead to some modification of the rules that apply to these claims.

Right now, we face a court in transition.  During the first decade of the Roberts Court, liberals had three viable options for reaching a 5-4 majority — Justice Scalia (in some categories of cases), Justice Kennedy, and Chief Justice Roberts.  Based on one full-term, it is difficult to tell where Justice Gorsuch will fall.  At the present time, he seems to be filling the spot occupied by the Justice that he replaced — Justice Scalia.  In other words, most of the time, in left-right splits, he will be voting with Justice Thomas and Justice Alito.  However, he has shown that on some cases, he will be the fifth vote with the “liberal” justices and that, in cases in which Justice Alito and Justice Thomas stake out ground that is out of the mainstream, he will join with Chief Justice Roberts and the liberal justices.  But for most of the past decade, the justice most likely to be the fifth vote was Justice Kennedy, and Justice Gorsuch looks to be significantly to the right of both Justice Kennedy and Chief Justice Roberts.  Based on his history in the D.C. Circuit, Judge Kavanaugh seems to be similar to, if not more conservative than, Justice Gorsuch (as are most of the top contenders if Judge Kavanaugh opts to have President Trump withdraw his nomination).  There will be some cases (three last year) in which Chief Justice Roberts provides the fifth vote.  There will be some cases (two last year) in which it is Justice Gorsuch is the justice joining with the liberal justices.  There may be even be bizarre cases in which it is Justice Alito and/or Justice Thomas who joins with the liberal.  But the bottom line is that there will be more cases in which the four conservative justices hold together and Chief Justice Roberts joins them.

If Democrats want to make major policy strides over the next decade, we need the House, we need the Senate, we need state legislators, we need Governors, and we need the White House.  We simply can’t count on the courts to save the country from the extremes currently controlling the Republican Party.  Maybe, in a decade or so, when Justice Thomas retires, we will be able to reclaim the judicial system for the values found in the Constitution, but that day is not today.  The path forward is through the ballot box and will require overcoming the Republican efforts to suppress the vote and democratic choice.  And that path starts this November.

 

Posted in Judicial | Also tagged , , , , , Comments Off on Supreme Court Preview 2018-19 Term: Part III (Rest of the Term)

Thinking 2021

By tmess2 | Published September 15, 2018

One weakness that the Democratic Party has had over the years is getting loosely attached Democratic voters to think beyond the current election.  But many components of the political system elect members in staggered elections (e,g,, the U.S. Senate); so gaining the ability to pass your legislation requires a multi-year plan.

While in the weeks ahead, posts on this site will undoubtedly focus on the race for power in D.C., this post is about the other offices that will be on the ballot in November — state positions.  In less than nineteen months, residents of the U.S. will receive and then return their census forms for the 2020 census.  In slightly over two years, the Census Bureau will release the numbers from that census to the states which will then begin anew the process of drawing the political maps that will control U.S. House (and state legislative elections) between 2022 and 2031.  And some of the people elected at the state level this November will still be around in 2021 to vote on these new maps.

The big office in most of the states is governor.  There are 36 governor’s offices up for election this cycle with Republicans currently holding 26 of them.  In 34 states, the term of office is four years; so the winner this year will be around in 2021.  (In two states — New Hampshire and Vermont, both held by Republicans — the term of office is two years; so we will get another shot at removing the Republican in 2020 and only New Hampshire is likely to have multiple congressional seats after the 2020 census.)   In some of these states — Arizona, California, and Iowa — the redistricting process minimizes the influence of the governor or legislature; so, while — for other reasons — holding California and picking up Arizona and Iowa would be useful, they will not have a big impact on redistricting in 2021.  There are also some states that currently only have one representative in Congress eliminating the need for Congressional Districts — Alaska (Independent); South Dakota (Republican), and Wyoming (Republican).  Even after eliminating these states, you have twenty states held by Republicans and eight states held by Democrats in which the winner of the 2018 election for governor will be around in 2021 and have the power to veto or sign any proposed congressional map.

In many states, there will also be a state senate election.  There are three basic models for how states elect state senates.  In twelve states, the term for state senators is two years.  While it is always better to be the incumbent than the challenger, the winners in 2018 will have to run again in 2020.  In twenty-seven states, the term is four years but the state has staggered elections.  In these states, half of the state senators are up for election this year and the winner will still be in office (barring some reason for leaving office early) for the 2021 redistricting process.  Finally, there are eleven states in which the term is four years but all senators run at the same time.  Of these last eleven states, three (Alabama, Maryland, and Michigan) are on this year’s ballot, and the winners will still be around in 2021.

Looking at the individual states on the ballot, there are several key states.  Going in alphabetical order, the first key one is Colorado.  There is currently a Democratic governor, but the seat is an open seat in this election due to term limits.  The Republicans currently have a narrow 18-16 advantage in the state senate with one independent with half the seats on November’s ballot.  Colorado has seven congressional seats (currently three Democrats and four Republicans) but is currently likely to pick up an eighth seat in 2020.  If Democrats control redistricting, the new lines should be at least 4-4 if not 5-3 in favor of the Democrats.  If Republicans control redistricting, the lines will probably be 5-3 in favor of Republicans.

The biggest state in which Democrats have a realistic chance is Florida.  With current governor Health Care Fraud running for U.S. Senator as the Republican nominee, the seat is open and the Republicans have opted for a Trump apologist as their nominee.   The Republicans currently as a result of very gerrymandered lines drawn in 2011 have a 16-11 advantage in the Florida delegation, and Florida is projected to gain two new seats.  This year, half of the state senate is up for election and Republicans have a 23-16 majority with one vacancy.  If Democrats can pick up two or three seats this year, they would have a chance at gaining control of the state senate in 2020.

Georgia is one of the states with two-year state senate terms but the governor’s seat (currently held by Republicans) is up for grabs.  While Georgia leans Republican, the Democratic nominee, Stacey Abrams, has a chance at pulling off the upset as the Republicans opted to go hard right in their pick.  The Republicans currently have a 10-4 advantage in the Congressional Delegation.  With a Democratic governor giving us a seat at the table, that split would probably go to 8-6 or 9-5.

Another big prize up for grabs is Illinois where the Republican incumbent governor is very vulnerable.  Half of the state senate is also up for grabs.  Democrats currently have an 11-7 advantage in the congressional delegation but Illinois is likely to lose one seat.  Who wins this year could determine which party gives up a seat in 2021.

Kansas is a bit of a sleeper.  The current lines are drawn to have two lean Republican seats in the KC suburbs.  The good news of such lines is that Democrats have an outside shot at winning two seats, the bad news is that Democrats typically end up with no seats (the current situation).  It is clearly possible to draw lines to create a 3-1 split.  After a close primary election, the Republicans nominated Spawn of Satan Kris Kobach over the “incumbent” governor giving the Democrats a chance to pick up this seat.

The Republican governor in Maryland is favored to win re-election.  While the state is solidly Democratic, that probably means that the current 7-1 split in the Democrats favor in Congress will revert back to its past 6-2 split.

Michigan is another state that Republicans grossly gerrymandered in 2011 giving them a 9-5 advantage in the Congressional delegation from a lean Democrat state.  Besides an open governor’s seat (with good chances for a Democratic gain), the full state senate is on the ballot this year.  The Republicans have a solid majority in the state senate; so the real Democratic goal this year is to win enough seats to sustain a veto and force the Republicans to negotiate over fair lines, particularly as the state is likely to lose a seat in 2020.

In Minnesota, the governor’s seat is an open race (currently held by Democrats) with no state senate seats on this year’s ballot.  The Democrats currently have a 5-3 advantage in the congressional delegation but some of the seats currently held by the Democrats actually lean Republican.  With the state likely to lose a seat, it would not be too difficult for Republicans to draw a map that would solidify 4-3 Republican advantage.

Another big state is Ohio.  Like in Michigan, a Republican governor is stepping down and things are looking promising for the Democrats to take the governor’s mansion.  Like in Michigan, the 2011 lines are lopsided giving the Republicans a 12-4 advantage in a toss-up state and the state is likely to lose a seat in 2020.  Unlike in Michigan, only half of the state senate is on the ballot this year.   However, as in Michigan, the state senate lines are drawn in such a way as to all but guarantee a Republican majority and the real goal is to gain enough seats to be able to sustain a veto.

In Pennsylvania, the courts struck down a lopsided map earlier this year, but in 2021 the Republicans will certainly try again.  If the Democrats can hold the governor’s seat in this year’s election that will be a much harder task for Republicans.  Half of the state senate seats are up for election this year.  As in Michigan and Pennsylvania, the state senate map favors the Republicans but the current numbers are right on the line for being able to sustain a veto.  Picking up one or two of the twenty-five seats on this year’s ballot would certainly help.  Pennsylvania looks likely to lose one of its eighteen seats in congress after the 2020 census.

Finally, there is Wisconsin.  Another great example of Republican gerrymandering in 2011.  And Democrats have a real chance at retiring Scott Walker.  The Republicans have a narrow lead of 18-15 in the state senate.  With half of the seats up for election, Democrats could easily be in control of the state senate in 2021.  Picking up one or two seats this time would increase those chances.

While as discussed in past columns on gerrymandering, the Republicans do have some geographic advantages due to self-sorting of voters, but the current median district has a Partisan Vote Index that is an R+3.  That means that Democrats need over 53% of the national popular vote for House to be favored to take a majority in the House.  We need to work hard over the next four years to get fairer lines so that having the support of the majority of Americans is enough for Democrats to have the majority in the U.S. House.  This November’s races at the state level can be a good down payment on that effort if we do well in all of these states.

 

Posted in Elections | Also tagged , , , , , , , , , , , , , , , Comments Off on Thinking 2021

Latest Legal News on Gerrymandering

By tmess2 | Published September 1, 2018

As readers may recall, back in June, the United States Supreme Court evaded ruling on the issue of partisan gerrymandering in three cases.  In particular, the United States Supreme Court declined to review the merits in a case out of Wisconsin based on a question of “standing” (who can bring a case), declined to review a case out of Maryland because the appeal was from a ruling on a motion for preliminary injunction rather than a final judgment, and opted to send a case from North Carolina back to the trial court to consider whether the other two rulings had any impact on the trial court’s ruling.  Earlier this week, a three-judge panel for the Middle District of North Carolina completed the reconsideration ordered by the United States Supreme Court and once again struck down the North Carolina congressional district map as an unconstitutional partisan gerrymander.

From the beginning, the outcome in North Carolina has mostly been about whether there is a way to make a partisan gerrymandering claim.  At the time that the legislature was enacting the current maps, the Republicans in North Carolina boasted that they drew the map to lock in a 10-3 advantage only because they could not find a way to draw a map that gave them an 11-2 advantage.  As detailed in the opinion, the redistricting committee only considered partisan data (after an earlier map had been struck down by the courts as a racial gerrymander, the goals of the committee expressly included drawing a 10-3 map, and the maps reflected lines that either split Democratic areas between Republican districts (cracking to avoid potential that including entire area might make a single district competitive) or put Democratic areas intact into districts that were already overwhelmingly Democrat (packing to avoid such voters having any influence in a competitive district).  Once the panel decided that  this summer’s opinions implicitly recognized that there could be a partisan gerrymandering claim, it was easy to find on multiple grounds that these maps were unconstitutional.

However, June’s decision to send this case back to the trial court created a problem with the trial court imposing a remedy.  As of Monday, when this decision came down, there were only ten weeks left until the November election.  The decision did leave open the possibility that the trial court would try to craft a remedy that could take effect in 2018 and gave the parties until Friday to make suggestions about how to proceed.   However, according to the latest reports, the plaintiffs (which include the North Carolina Democratic Party) conceded in their suggestions that there was no practical solution that could be completed in time to avoid disrupting the November elections.  (Additionally, if the trial court had tried to impose a remedy, the legislature could have asked the Supreme Court to issue a stay.  Depending on how long it took to craft a remedy, it is possible that Judge Kavanaugh would already be sitting as Justice Kavanaugh giving five votes for a stay.  Even if the confirmation process was not yet complete, there is a tradition of a “courtesy” fifth vote for a stay in cases that are divided 4-4. )

Based on Friday’s suggestions, it is likely that the trial court would order some type of process to draw new maps for 2020 (just in time for the process to start over).  And, it is likely that the legislature will appeal this decision to the United States Supreme Court — either just in time for an April 2019 argument or (more likely) late enough to get an October or November 2019 argument — meaning no decision until May or June 2020 at which point the case might be sent back on some minor flaw to avoid any need to resolve this issue before redistricting begins again in 2021.

Posted in Elections, Judicial | Also tagged Comments Off on Latest Legal News on Gerrymandering

Partisan Gerrymanders and the Supreme Court

By tmess2 | Published April 7, 2018

Earlier this year, the United States Supreme Court heard oral argument (transcript here) in Gill vs. Whitford, a case in which a three-judge panel found that the legislative district lines drawn by Wisconsin after the 2010 Census was an unconstitutional partisan gerrymander in violation of the Equal Protection Clause.  Last week, the United States Supreme Court held oral argument (transcript here) in Benisek vs. Lamone, a case in which a three-judge panel rejected a request for a preliminary injunction involving a claim that Maryland’s Sixth District was an unconstitutional partisan gerrymander in violation of the Free Speech Clause (and other parts of the First Amendment).

It is unusual for the United States Supreme Court to set a second case on the same issue for hearing while the first case is under submission (i.e. already argued).  What is more typical is granting multiple cases at the same time and having all argued at the same time.  As such,  for those who try to look for tea leaves in oral argument, one area of speculation was whether the questions from the justices might indicate where they were on the issues raised in Gill.  In theory, at least, there are some drafts being circulated on Gill.  At the very least, there was a tentative vote immediately after Gill. 

Two initial points before going into the merits.  First, redistricting and the rules for it are important.  We spent a lot of time in 2011 discussing what might happen when the new maps are drawn.  After three congressional elections (and state legislative elections) and two presidential elections, we have a pretty good understanding of the results of the 2011 line-drawing.  The bottom line (according to the Cook Partisan Vote Index) is that, in an election in which both parties get 50% of the two-party vote, the Republicans will emerge with something around a 240-195 advantage in Congress, exactly where we ended up after 2016.  To win a majority, the Democrats need to get around 53% or 54% of the total vote.   In many states, you have similar results on the state level.

Second, the two cases have several differences in how they present the issues to the Supreme Court.  Gill involves a state-wide challenge to legislative districts based on the Equal Protection Clause after a final decision.  Benisek (at least as currently presented) involves a challenge to a single congressional district based on a First Amendment “retaliation” theory after the denial of a preliminary injunction (and there are additional requirements separate from the ultimate merits before a party can receive a preliminary injunction).   Potentially, these differences were the reason for the argument in Benisek — to have an opportunity to decide exactly the theory and standards under which courts can review partisan gerrymander claims.

In practical terms, the Wisconsin case is similar to many voting rights cases.  In voting rights cases, there are two ways that districting can get into trouble.  First, it can take account of race too much — raising an equal protection intentional discrimination claim.  This type of claim tends to focus on individual districts.  Second, it can fail to give minority voters enough “minority majority” districts or not enough “minority influence” districts leading to the dilution of minority votes. This type of claim tends to focus on the map as a whole.   The theory in the Wisconsin case looks like a mix of these two approaches — relying on evidence of an intent to slant the whole map in favor of the Republicans and proof (in terms of mathematical measures of wasted votes) that the map is designed to leave Democrats under-represented and to prevent the Democrats from gaining the majority even if the Democrats win a majority of the popular vote (as shown by the 2012 election results).  You had something similar in the district lines just thrown out in Pennsylvania.

The Maryland case focuses on the targeting of certain voters.   After the 2010 census, Maryland’s Sixth District needed to be increased by 10,000 residents to meet the requirements of one man, one vote.  Instead, the new lines moved about half of the former residents out and replaced them with a new group of voters — changing a likely Republican district into a likely Democratic district (currently a D+6 partisan vote index).    The theory is that these voters were punished for their past history of voting for the minority party by being moved from a district in which they had influence in choosing their Congressman into districts in which their votes do not matter.

So what did we learn from the argument?  Unfortunately, the signals were very mixed.  The more conservative judges were a little more respectful of the Maryland challengers than they were of the Wisconsin challengers.   The problem is figuring out the reason for this.  Was this merely partisanship (treating the Republican challengers in Maryland better than the Democratic challengers in Wisconsin) or did this indicate that the vote after Gill was to recognize some type of partisan redistricting claim with the debate being about the type of standard.  If the debate was about the standard, obviously, the conservatives would prefer a simpler standard that is difficult to meet.  A Maryland-based test would probably only reach the most blatant reworking of a single district and allow the more subtle manipulation of the entire map that is currently common as shown by the Wisconsin case.

On the other hand, that question of the appropriate standard seems to be very much in the air.  In fact, given that it is almost certainly too late (or will be by June) to redraw lines for 2018, Justice Breyer suggested granting review on a third case out of North Carolina (lower court decision here) that presents a third approach to the appropriate standard and scheduling all three cases for argument this fall so that the Supreme Court could have all three proposals in front of it with appropriate supplemental briefing on the merits of each of the potential standards.

So what to expect from these two cases.  It is likely that the Supreme Court will want to issue both cases at the same time and may even assign both cases to the same justice.  Amazingly, we still have four cases outstanding from October (the Supreme Court has been very slow with opinions this year).  As discussed in the past, the Supreme Court tends to try to balance the workload of the justices,  Thus, it is likely that Gill was originally assigned to one of four justices — Chief Justice Roberts, Justice Kennedy, Justice Alito, and Justice Kagan.  Cases are assigned by the senior justice in the majority, but it is unclear what qualifies as a majority here.  It is unlikely that five justices will agree that the panel in Gill applied the right test; so there is probably a majority to reverse the decision below in which case Chief Justice Roberts would arguably be the senior justice in the majority and may have kept the case.  On the other hand, it is unclear if Chief Justice Roberts agrees that the challengers in Gill presents a viable claim, but it is pretty clear that Justice Kennedy believes that a partisan redistricting claim is viable which would make Justice Kennedy the senior justice in the majority on that issue, making it likely that Justice Kennedy would have the case.  Regardless of which justice got the original assignment, the argument in Benisek raises the likelihood that we will have some type of split decision in both cases in which no opinion gets the support of five justices with three or four finding that there is no claim, and the rest splitting on the proper legal standard to apply to such a claim.   There is always the slim chance that Justice Breyer will get what he proposed, reargument in the fall with three cases on the docket at the same time.

Particularly, as we are unlikely to get new maps for 2018 in any of the three states, and the most likely result is to send these cases back to the panels for reconsideration in light of whatever standard gets the support of five justices (or whatever standard is deemed to be the narrowest rule if no standard gets the support of five justices), the results in these cases matter most for 2021.  Even if there is no final decision on the current maps before the 2020 elections, the standard in these cases will give guidance to whomever has to draw the new maps in every state in 2021.

While activists hope for a favorable decision from the Supreme Court, they are not waiting.   In, at least, four states, activists are pushing potential referendums to change the redistricting process.  In the last round of redistricting, all four states drew lines that were slanted in favor of Republicans,  costing the Democrats 5-10 House seats.  In Michigan, supporters have submitted signatures to the Secretary of State for a proposal that would give redistricting authority to a group of randomly selected commissioners.  In Missouri (which already uses balanced bi-partisan commissions for state legislative maps), the proposal being circulated creates a non-partisan official to draw the initial maps with the commissions (and the state legislature for congressional maps) having the power to change those maps by a supermajority.  In Ohio, the proposal being circulated would give the commission that currently draws state legislative maps the responsibility for drawing the congressional map as well.  Finally, in Utah, at least some signatures have been submitted in support of a proposal to create a redistricting commission with authority to draw congressional and state legislative maps but with the legislature having final approval over the plans.  All four proposals establish criteria governing the final maps intended to create a mechanism for challenging the more extreme forms of gerrymandering.

Besides these propositions, of course, the best defense to another round of pro-Republican gerrymandering is to win state legislative seats and the governorships in the states.  In both Ohio and Utah, the proposed commissions divide the appointment of commissioners between three executive branch officials and four legislative officials (meaning that one party could have a 5-2 advantage).   Even with the propositions, the majority of the states will still give virtually unfettered authority to the state legislatures.  With governors and state senators having four-year terms in almost all states, the winners in this fall’s election will still be around in 2021 to draw the new maps.

While “fairness” in elections is not something the directly effects people (and thus is hard to get non-activists interested in), it is a necessary pre-condition to the policy goals that do matter.  The folks at 538 did some random maps based on certain criteria — ranging from nation-wide partisan gerrymanders (unlikely as no party is going to control every state) to various neutral criteria (partisan balance, compact, competitive, maximizing minority representation) — and the only map worse than the current map would have been a nation-wide pro-Republican gerrymander.  In particular, the current map (on average) is about nine to ten seats more favorable to the Republicans than a map designed to maximize the number of competitive districts.  Equally as important, the current map has fewer competitive districts than any of the non-partisan gerrymander maps, meaning that general election voters have few opportunities to change their representative.   While geography does and will pose a potential problem for Democrats, the current maps in several states are costing us multiple seats compared to a non-partisan map (e.g., North Carolina — 2 seats; Texas — 2 to 3 seats) and in the vast majority of states have at least one or two seats that were drawn as likely Republican which with minor adjustments could have been swing seats.  At the end of the day, it is much harder to get protections for workers, the environment, women, LGBTs, minorities if we need to get 56% of the vote to get a narrow majority and a working majority is almost impossible.

Posted in Elections, Judicial | Also tagged , , Comments Off on Partisan Gerrymanders and the Supreme Court

Pennsylvania Redistricting

By tmess2 | Published February 21, 2018

Monday, the Pennsylvania Supreme Court issued an order (with attached maps) redrawing the Congressional Districts for Pennsylvania  This order follows on last month’s decision finding that the 2011 map violate the Pennsylvania Constitution as a partisan gerrymander.  The United States Supreme Court is currently considering two cases — one argued last fall and one scheduled to be argued next month — on whether the U.S. Constitution also bars partisan gerrymanders.

I will leave it to our local experts to follow up on exactly how the new lines should impact November’s election.  The key points to make for now are:  1) this map will govern this year’s elections as filing with the Supreme Court’s including a time table for implementation of the order and candidate filing that will allow the primary to take place as scheduled; 2) the old maps were gerrymandered in such a way that the Republicans have carried 13 of the 18 districts (and the same 13) in each of the three elections so far under the old map (even though the Democrats won state-wide by 5% in 2012 and 9% in 2014 and barely lost in 2016);  and 3) in the three elections under the old map, 37 of the 39 Republican wins were by double digits (the other two involved margins of 9% and 4%).   The early numbers that I have seen from national prognosticators is that Democrats should pick up at least two seats in a 50-50 cycle and, in a cycle in which Democrats get 55% or more nationally, the Democrats would pick up an additional 2 to 3 seats (a 9-9 split or 10-8 in favor of the Democrats).  That compares to 2012 in which the Democrats got 53% nationally but still only won 5 seats in Pennsylvania.

One thing that is significantly different about the new map is that there are less weird shapes, and most of the weirder shapes in the new map comes from not splitting counties or municipalities unless such splits are absolutely necessary to maintain equality.  There is also some changes in the numbering.  As a result, some incumbents (including whomever wins the upcoming special election in Western Pennsylvania) will have to decide what district they will run in this year.  Some incumbent may be looking at a situation in which either: 1) their base is split between multiple districts; 2) they live in one district while the heart of their old district is in another district; 3) their new district contains a substantial portion of the old district of another incumbent.  As such, sitting members may have to decide between retiring, challenging another incumbent from their party, or running in a district in which they will have a difficult time running.  We may not know until filing closes on March 20 (one week after the special election) how the incumbents will reshuffle from the old seats to the new seats and whether we will have any incumbent vs. incumbent primaries or general elections.

Posted in Elections, House of Representatives, Judicial | Also tagged , Comments Off on Pennsylvania Redistricting

The Future of Redistricting

By tmess2 | Published October 2, 2017

At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander.  Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion.  Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.

This case has its roots in the framing of the Constitution.  The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county).  When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”).   The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament.  In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.

By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed).  Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting.  In simply requiring redistricting, the U.S. Constitution was ahead of its time.  Now, most countries that use a first-past-the-post system also have periodic redistricting.  The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines.  The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process.  And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting.

In 1812, after the adoption of a new state constitution, Massachusetts had to draw new district lines.  And with one party (the Democratic-Republicans) controlling the legislature and the Governor’s mansion, the new lines were drawn to maximize the number of legislative seats that would favor the Democratic-Republicans and to minimize the number of seats that would favor the Federalists.  The weird shape of one of the districts was noted by a Federalist newspaper (back in the days when media was actually biased) and the term gerrymander (after then-governor and soon-to-be-Vice-President Elbridge Gerry) was born.

The essence of the gerrymander has not changed over time.  Every gerrymander does two things:  it packs the opposing party into a handful of safe districts and it cracks the opposing party out of a potential swing district into neighboring safe districts that favor the majority.  For example, imagine a region with four hundred people that need to be split into four districts.  This district has 180 people who vote for Party A, 180 people who vote for Party B, and 40 swing voters.  “Natural” district lines would give you a Western district that favors Party A (say 70-20-10), an Eastern District that favors Party B (again say 70-20-10) and two central swing districts (say the Western one favors Party A by 48-42-10 and the Eastern one favors party B by 42-48-10).    A pro-Party A gerrymander would redraw the lines so that District 1 (the westernmost district) favored them by only 60-25-15 and District 2 (the central western district) favored them by 58-37-5 — cracking Party B and swing voters out of district 2 and placing them into a district that was safe for Party B, turning 1 safe and 1 swing district into 2 safe districts.  At the same time, District 4 (the Eastern District) is redrawn to make it 80-5-15 giving Party A the majority (57-38-5 ) in District 3, making District 4 even safer for Party B and turning District 3 from a swing seat into a safe seat for Party A by packing Party B voters into District 4.

While the essence of gerrymandering has not changed, what has changed is the ability to manipulate data.  In the past, gerrymandering involved looking at precinct/voting district level results.  If you split a precinct between two districts, you basically assumed that all voters in the precinct were interchangeable.  Now, computers can make highly accurate guesses based on census block level data and data mining as to where the Republican and Democratic voters in a precinct live.  More importantly, computers can quickly run multiple alternative maps to maximize a party’s performance.   Once the majority party defines the parameters for the program (e.g., priority one — maximize the number of seats in which the opposing party gets more than 70% of the vote; priority two — maximize the number of seats in which your party gets between 57% and 62% of the vote; priority three — a certain number of seats that in which minorities have at least 40% of the vote; priority four — a certain score for compactness, etc.), it can then have the computer run ten or twenty maps and then opt for the one that has the most safe districts for the majority party.  The end result is a legislative map in which the minority party needs to get 55% or more of the statewide vote to even have a shot at winning control of the legislature.

Several times in the past, the Supreme Court has taken a look at partisan gerrymandering.  Each time, the majority has seen that such a claim is theoretically valid.  However, there has never been a majority that could agree on a standard.  The last time that the Supreme Court took a look at this issue, the split was 4-4-1.  Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice O’Connor did not think that there was a valid claim.  Justices Stevens, Souter, Breyer, and Ginsburg thought that there was a claim but could not agree on the proper standard for such a claim.  Justice Kennedy thought that there might be a claim but that none of the proposed standards was workable (in the sense of drawing a clear line between a legitimate map and an invalid map — in other words how far was too far).  Given Justice Kennedy’s position, for the last ten years, litigants have been looking for tools and standards that would establish a sufficiently clear line.

Wisconsin (and those who support Wisconsin on this appeal) basically attempt to mischaracterize the challengers as proposing a standard that requires proportional representation.  That is completely false.  The issue is not exact proportionality.  The issue is whether the lines give voters a realistic opportunity to change which party governs.  Fair lines should have the tipping point (the point at which control changes) be close to 50% of the vote.  How close the rest of the districts are to the median district is distinct from whether the tipping point is close to 50% of the statewide vote.

For the tipping point to be at 50%, the two-party vote — by percent — in the median district (i.e. the district that is exactly in the middle if you ranked the district by the percentage of the two-party vote that one of the parties gets) should be almost exactly the same as the statewide two-party vote — by percent.  Which leads naturally to the first part of any standard — do the district lines inherently favor one party,   There are lots of tools for measuring whether district lines are “unfair”  — comparing the vote in the median district to the state-wide numbers, the efficiency gap (does one party “waste” more votes than the other party), looking at the results in multiple elections (including elections for state-wide offices) to see if one party’s apparent advantage is real or merely a fluke caused by the candidates who ran.

Some suggest that the standard should require that the advantage be persistent.  One of the reasons for redistricting is to reflect changes in population over a decade; so it is expected that the impact of the lines will change.  More significantly, it is difficult to show that lines create a persistent disadvantage without allowing the unfair lines to be used in several elections.  I think it should be enough for the challengers to the district lines to use the last two cycles (state-wide vote) before redistricting (and any cycles that occur under the new lines before any trial) to show that the lines do create a clear advantage (make it difficult for the other party to get a majority of seats with a majority of the statewide vote) for the governing party under current conditions.

The other issue is one of intent — is the reasons for the lines to create that clear advantage.  Admittedly, the best theoretical argument for those opposing recognizing partisan gerrymanders is a claim that the apparent lopsided results are the result of geography.  Both in Wisconsin and in other states, however, there is evidence to support a finding of intent, and the intent standard in a partisan gerrymander case is not that different from a case involving racial gerrymander.  Back to the computer programs discussed above.  In the example used, the top two priorities were about partisan advantage for the majority — packing Democratic voters into ultra-safe Democratic districts and cracking them out of lean-Republican and swing districts to create as many safe Republican districts as possible.  It is possible to give the redistricting program strictly non-partisan criteria — compact districts, equal population, VRA compliant (setting a certain number of minority influence districts at 40% of the population), respecting precinct and other political boundaries, etc. — and have the computer generate a large number of maps.  The partisan nature of those maps can be compared to the map chosen.   In particular, each of those maps will generate a median district with a measurable partisan composition, and the set of maps will generate a mean, median, and mode for the partisan composition of the median district of each map along with a standard deviation from the mean and median.  If the map chosen is more favorable to one party by several standard deviations than the typical map, then that is strong evidence of intent.  Additionally, if there are other actions — such as the Wisconsin Republicans starting with a very slanted map and then looking to make adjustments to make it even more slanted — revealing a desire to create an unfair map, then you have a pretty good case that the map is the product of an improper intent.

The ultimate question is whether it is proper for legislators to be creating maps designed to give a partisan advantage.  The answer to that should ultimately be no.  The Constitution provides for a republican form of government — one in which the legislative branch is responsive to and fairly represents the will of the majority.  If it is acceptable for legislatures to draw district lines to frustrate the will of the majority, we have deviated from a republican form of government.  It may, of course, be too much to ask for legislatures to ignore their partisan desire (and their desire to run for higher office), but the Supreme Court can give us a legal rule that limits the ability of legislators to depart from partisan neutrality in drawing legislative and congressional maps.  Maybe, if the test has enough bite, more states will adopt the non-partisan commission as the instrument for drawing legislative maps.  As noted at the start, by early next year, we will know whether legislators in 2021 will have to worry about courts stopping them from using the redistricting process to prevent the voters from controlling who governs or if legislators will continue to be able to choose their voters in a way that strips all power away from the electorate.

Posted in Civil Rights, Elections, Judicial | Also tagged , , , Comments Off on The Future of Redistricting