Symposium: Intent is enough

By on Aug 9, 2017 at 10:44 am

Justin Levitt is a professor at Loyola Law School, Los Angeles; he runs the website “All About Redistricting.”

When the Supreme Court last addressed partisan gerrymandering in detail, all nine justices agreed that “an excessive injection of politics” into the redistricting process violates the Constitution. The court splintered, however, on two pivotal issues: how to know when an injection of politics is excessive, and who should decide.

Four justices proposed various tests; four others wanted federal courts to abandon the field. Justice Anthony Kennedy, occupying his customary center square, rejected all of the proposed tests, but refused to slam the courthouse door entirely on partisan-gerrymandering claims. He expressly invited redistricting litigants to serve up additional standards. And for the last 13 years, they have been trying to solve Kennedy as much as they have been trying to solve excessive gerrymandering.

In Gill v. Whitford, the issue is once again squarely before the Supreme Court, on direct appeal from the first lower-court decision in at least 30 years to strike a redistricting map as a constitutionally excessive partisan gerrymander. Much of the hubbub around the case centers around the “efficiency gap,” a bit of math devised by political scientist Eric McGhee and then refined as a litigation tool with law professor Nick Stephanopoulos (who is also co-counsel for the challengers).

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Wednesday round-up

By on Aug 9, 2017 at 7:00 am

In The Washington Post, Sari Horwitz reports that “[i]n a court filing Monday, Justice [Department] attorneys took the opposite position from the Obama administration in a case that involved the state’s removal of thousands of inactive voters from the Ohio voting rolls” and that the department is now “arguing that the purges of voters are legal under federal law”; she notes that “[t]his brief, unlike the prior one, was not signed by career attorneys in the Civil Rights Division.” Additional coverage of DOJ’s course-reversal comes from Charlie Savage in The New York Times, Jessica Wehrman at The Columbus Dispatch, Jane Timm at NBC News, Debra Cassens Weiss at the ABA Journal and Sam Levine at the Huffington Post. At the Election Law Blog, Justin Levitt observes that “it’s quite rare for the DOJ to change course after a filing a brief in the court of appeals: the Solicitor General’s office is often called the “Tenth Justice,” in part because while reversals happen, there’s a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight.” At Slate, Mark Joseph Stern argues that “[t]he department’s political appointees are transforming [a federal law regulating voter-roll upkeep] into a disenfranchisement device.”

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Petition of the day

By on Aug 8, 2017 at 4:22 pm

The petition of the day is:

17-21

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

Chris Winkelman is general counsel to the National Republican Congressional Committee, which filed an amicus brief in support of the state appellants in Gill v. Whitford. Phillip Gordon is an associate at Holtzman Vogel Josefiak Torchinsky PLLC and contributed to the NRCC’s brief.

In the dark recesses of single-origin-coffee shops, natural grocery stores, microbreweries and free-range-egg-and-eight-dollar-mimosa brunches in places as far flung as San Francisco, Brooklyn and Washington, D.C., people are coming to a profound, and to them, disturbing revelation: The United States is a republic. As much of a shock as this must be to them, the Constitution spells out how one of our country’s most fundamental acts of representative government is undertaken — choosing the “Times, Places, and Manner of holding Elections.” This is a power the Constitution gives to state legislatures in Article 1, Section IV, and like most other parts of the Constitution, it is subject to certain constraints.

First, the same section of the Constitution gives Congress the power to “make or alter” election regulations. Congress in fact used that power on multiple occasions when it enacted the Voting Rights Act, the various Reapportionment Acts and the requirement of single-member districts for Congressional seats. Second, the Supreme Court imposed requirements such as “one-person, one-vote” to comply with the equal protection clause of the Constitution. Third, many state constitutions or statutes impose various criteria on redistricting, such as single-member districts, compactness and contiguity. Finally, the framers and the Supreme Court understood that redistricting, as Justice Byron White put it, is “intended to have substantial political consequences.” The history of redistricting in the United States, if it teaches us anything, teaches us that redistricting is a political act, was intended to be a political act, and has always been a political act. This simple truth has been difficult for the plaintiffs in Gill v. Whitford to accept, and has proven even more difficult for the Supreme Court.

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Thomas P. Wolf is counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.

Even before the Supreme Court announced that it would hear oral argument in Gill v. Whitford, a conventional wisdom of sorts about the case had settled in: This case would be one of the most important of the court’s appeals for the October 2017 term and perhaps one of the most significant democracy cases in a decade or more. It would either be an opportunity for the court to rid us once and for all of the scourge of partisan gerrymandering in all its forms, or end for all time the search for a partisan-gerrymandering cause of action.

This case will be important, no doubt. But, in reality, the challenge it presents the Supreme Court is a much more modest one.

Far from being a referendum on the American redistricting process writ large, this case asks the Supreme Court to weigh in on the constitutionality of one specific type of gerrymandering: a political party’s use of the redistricting process to net and entrench an unbreakable legislative majority that it couldn’t command without extreme manipulations of the electoral map. (This is the type of abuse a majority of the court seemed to have in mind in 2015 when, in Arizona State Legislature v. Ariz. Independent Redistricting Commission, it described “partisan gerrymandering” as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”)

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Tuesday round-up

By on Aug 8, 2017 at 7:29 am

Briefly:

  • At Fa on First, Wen Fa urges the Supreme Court to review a challenge to a Minnesota law that “prohibits voters from wearing political apparel at the polling place,” arguing that “[b]y criminalizing all sorts of shirts, buttons, and badges, Minnesota has essentially created speech-free zones at polling places across the State” and that a “favorable ruling from the Supreme Court would vindicate the First Amendment rights of voters nationwide.”
  • At NBC News, Julie Moreau reports on the results of a recent study indicating that “the 2015 Obergefell v. Hodges ruling that legalized same-sex marriage … helped to shift Americans’ perception of social norms in support of same-sex marriage,” research that she states may be relevant as the Supreme Court hears upcoming “cases related to anti-LGBTQ discrimination.”
  • In The Washington Examiner, Ryan Lovelace reports that a “nonprofit led by a lawyer for President Trump, Jay Sekulow, is asking the Supreme Court to review a federal court’s blocking of the publication of surreptitiously recorded videos involving abortion providers.”
  • In an analysis for The Washington Post’s Monkey Cage blog, Bernard Grofman and German Feierherd look at how other countries conduct legislative redistricting as the Supreme Court prepares to consider “the much-anticipated Gill v. Whitford,” which “brings up the hot-button question of whether a state legislature may draw electoral districts that favor one party over another”; they conclude that “redistricting looks quite different elsewhere, for several reasons.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 7, 2017 at 10:46 pm

The petition of the day is:

16-1432

Issue: Whether the application of a revocation-upon-divorce statute to a contract signed before the statute’s enactment violates the contracts clause.

 
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(UPDATED 5:45 pm: The post has been updated to include additional discussion about the significance of the justices’ decision to block the lower court’s order requiring the state to draw new maps by the fall.)

Justice Ruth Bader Ginsburg has suggested that it might be the most important case of the upcoming term. On October 3, the Supreme Court will hear oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, concluding that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. The challengers argue that the redistricting plan would allow Republicans to cement control of the state’s legislature for years to come, even if popular support for the party wanes; the lower court’s decision, they contend, merely corrected “a serious democratic malfunction that would otherwise have gone unremedied.” By contrast, the state of Wisconsin counters that if the lower court’s decision is allowed to stand, it will open the door to “unprecedented intervention in the American political process.”

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In Recess #2: #BadLawyerGate

By on Aug 7, 2017 at 8:33 am

This week’s episode was originally a “bonus” episode exclusively for our premium supporters, but we decided to unlock it for all our listeners in honor of our new partnership with SCOTUSblog.  In the episode, prompted by a tempest arising out our comments about advocate quality on an earlier show,we talk about the problem of unprepared counsel refusing to give up Supreme Court oral arguments to more experienced attorneys. We discuss why the problem exists, the ethical conundrums it creates, and what, if anything, can be done to fix it. The best part of the episode, though, is an interview with legendary Supreme Court practitioner Lisa Blatt, who at the time of recording was sitting on an unbelievable 32-2 record in argued cases in the Supreme Court, and who has since then improved to an even more mind-boggling 33-2.  Lisa explains her unorthodox argument preparation techniques, helps us understand why she’s been such a consistent winner, and offers her thoughts on the problem of unprepared oral advocates. We had a great discussion, and you won’t want to miss it.

 
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Monday round-up

By on Aug 7, 2017 at 7:51 am

Briefly:

  • Counting to 5 (podcast) features an interview with Gabe Roth of Fix the Court, a nonprofit that advocates for institutional reform of the Supreme Court, on the group’s “recent proposal to impose term limits” on Supreme Court justices.
  • The American Bankruptcy Institute’s Rochelle’s Daily Wire (subscription or registration required) argues that by granting the pending cert petition in Ivey v. First Citizens Bank and Trust Company, the “Supreme Court can resolve a split of circuits and in the process prevent debtors from winning discharges despite having committed fraudulent transfers with actual intent to hinder, delay or defraud creditors.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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