DrROBschiz
Member
PLEASE Scotus!
America at least needs a single win
America at least needs a single win
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Supreme Court to hear potentially landmark case on partisan gerrymandering
- Thread starter Vanillalite
- Start date
whyamihere
Banned
More:
http://electionlawblog.org/?p=95181
http://electionlawblog.org/?p=95181
Before oral argument I explained that the vote in Gill v. Whitford is likely to come down to Justice Kennedy, with the Courts four liberal Justices voting to rein in partisan gerrymandering and the four conservatives voting against it. From todays oral argument transcript, this dynamic appears to be true (apart from Justice Thomas, who did not speak, but who joined Justice Scalias plurality opinion in Vieth in 2004 arguing that partisan gerrymandering claims are non-justiciable). Today, Justices Breyer Ginsburg, Kagan, Sotomayor left no doubt they think courts should be policing in this area, and the Chief Justice, Justice Alito, and Justice Gorsuch thought they should not (either because of a lack of standing, or a lack of manageable standards, or because it would impinge on the legitimacy of the Courtmore on that below).
Justice Kennedy asked questions only to those defending Wisconsins gerrymander, and the questions suggested he believed, as he suggested in Vieth, that Wisconsins redistricting plan violated the First Amendment associational rights of Democrats. If he was concerned about finding a judicially manageable test to separate permissible from impermissible consideration of party (as he said he was in Vieth), he gave no inkling of that concern in questions today. While he is no sure bet to vote this way at the endit is hard to read tea leaves from oral argument and have confidence of how he will votethe questions on standing seemed to suggest the conservatives were looking for a way to get Kennedys vote other than on the merits.
If Kennedy does vote with the liberals, it could easily follow the path set out by Paul Smith, who did an excellent job arguing for the plaintiffs (all the attorneys did an excellent job in this case and the Justices were clearly prepared): intent, effect (measured by partisan asymmetry/bias) and justification, with the threshold being that a plan was enacted by a one-party legislature over the objections of the other party. I dont expect to see the efficiency gap as the holy grail, especially because it is likely to come under sustained attack by Justice Alito, who has never been a fan of courts getting involved even in the one person, one vote cases.
Perhaps most interesting to me about the argument aside from Justice Kennedys lean was the Chief Justices professed concern that having courts deciding these partisan gerrymandering cases would inject the courts too much in the political thicket and harm the courts legitimacy. From the transcript:
CHIEF JUSTICE ROBERTS: Mr. Smith, Im going to follow an example of one of my
colleagues and lay out for you as concisely as I can what what is the main problem for me and give you an opportunity to address it.
I would think if these if the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country. Politics is a very important driving force and those claims will be raised.
And every one of them will come here for a decision on the merits. These cases are not within our discretionary jurisdiction. Theyre the mandatory jurisdiction. We will have to decide in every case whether the Democrats win or the Republicans win. So its going to be a problem here across the board.And if youre the intelligent man on the street and the Court issues a decision, and lets say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes.And the intelligent man on the street is going to say thats a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And thats going to come out one case after another as these cases are brought in every state.And that is going to cause very
serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
MR. SMITH: Your Honor
CHIEF JUSTICE ROBERTS: It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesnt sound like language in the Constitution.
I find this line of argument singularly unpersuasive for two reasons.
First, the plaintiffs did not suggest a mechanical test for a 7 percent efficiency gap to decided these cases, and if they did, that would likely make it less politicized rather than more. A rule that says all districts must have exactly equal population is much less vulnerable to partisan manipulation by judges (or appear to be) than a multifactor test. And there are lots of constitutional tests that go well beyond the language of the Constitution, even tests proposed by originalists.
Second, and more importantly, the Court is already viewed as a political court, and as Ive argued (and argue more in my upcoming book in Justice Scalia) it is likely to be viewed as a partisan court going forward much more, now that all the liberals on the Court were appointed by Democratic presidents and all he conservatives by Republican presidents. This case is not going to do it. It is already done. The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court.
Indeed, if Justice Kennedy (a Republican appointee after all) votes with the liberals to rein in partisan gerrrymandering, perhaps that would improve the views of the Court by seeing a cross-party coalition reining in something seen as a major problem by both Democrats and Republicans.
TheOfficeMut
Unconfirmed Member
When does the actual vote take place?
Interesting that the efficiency test that made the Wisconsin case seem like a sure way of winning Kennedy's vote, doesn't look like it's going to be factor. Unless I'm misreading this. What exactly would Alito's arguments against the test even be?
The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court.
Indeed, if Justice Kennedy (a Republican appointee after all) votes with the liberals to rein in partisan gerrrymandering, perhaps that would improve the views of the Court by seeing a cross-party coalition reining in something seen as a major problem by both Democrats and Republicans.
I said goddamn
http://www.latimes.com/politics/la-na-pol-court-gerrymanders-20171002-story.html
Kennedy asked a lawyer for Wisconsin's Republicans whether it would be constitutional for the state to adopt a law that the election map will be drawn to ”favor party X over party Y."
Attorney Erin Murphy hesitated, noting that in this case, Republicans did not publicly proclaim that they were drawing a statewide map to ensure the GOP would maintain a solid majority, even though that was the effect of the district lines they created.
Kennedy was undeterred. ”I'd like an answer to my question," he said.
again, goddamn
SecretMoblin
Member
Interesting that the efficiency test that made the Wisconsin case seem like a sure way of winning Kennedy's vote, doesn't look like it's going to be factor. Unless I'm misreading this. What exactly would Alito's arguments against the test even be?
I think the conservatives' argument against the test was best (?) put by Roberts, who suggested that "fairness" is a somewhat malleable concept and that they're wary of declaring that the language of the Constitution necessitates drawing congressional lines based on the results of a specific mathematical formula.
It's less about how good or bad the actual test is - the efficiency gap theory has pretty strong support among political scientists working in this area - and more about whether or not such a theory should be adopted directly into the language of conlaw.
When does the actual vote take place?
Months from now. I dunno if there's a set date but they have till June
It's apparently pretty hard to argue (in the constitutional law world) that partisan gerrymandering (as opposed to racial) is actually unconstitutional. It absolutely should be because it's fucking terrible, but I don't think the language is there.
I could absolutely be wrong, though. I'm just under the impression this is the situation from how previous cases have been handled.
I'm no lawyer...but I can see how it might be. In a representative government...one in which the members of the house are SUPPOSED to reflect the actual will of the people, gerrymandering is done to PURPOSELY overrule them.
Last years election was pretty amazing in that there were more democratic votes made and yet they lost seats. That is (at least in the common sense) is unconstitutional.
brianmcdoogle
Member
When does the actual vote take place?
They have until June of next year. It's going to be many months.
Oral arguments are up! https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_bpm1.pdf
Audio of the oral arguments should go up this Friday, I think.
TheOfficeMut
Unconfirmed Member
Months from now. I dunno if there's a set date but they have till June
But they can vote anytime between now and then?
Cosmo Clock 21
Banned
Are there good arguments against using efficiency gap theory to identify politically motivated redistricting? The one editorial I read boiled down to "it's poopy and I don't like it"
But they can vote anytime between now and then?
I'm not sure, someone else could give more information. But there's still a long process before they even start deliberating. Basically, don't expect anything before the end of the year, and more likely, don't expect anything till May or June 2018
I said goddamn
http://www.latimes.com/politics/la-na-pol-court-gerrymanders-20171002-story.html
again, goddamn
Man, this isn't enough to make me like Kennedy, but I can respect him for this moment here. Maybe we're not as boned as previously believed?
Im cautiously optimistic about this case having a positive outcome.
... If only because the alternative is just too horrible to think about. Gerrymandering is a scourge on any democracy and the last thing this country needs is another blow to something as fundamental as fair representation.
... If only because the alternative is just too horrible to think about. Gerrymandering is a scourge on any democracy and the last thing this country needs is another blow to something as fundamental as fair representation.
FiveThirtyEight had a good podcast episode about this: http://pca.st/fQ27
Thanks for posting this. Great way to learn the the history of this case and the nuance around the arguments being made.
This can easily be argued as the most important political issue period and yet it still feels like people are sleeping on this issue.
hodayathink
Member
It's actually pretty blindingly obvious: When the map purposely disenfranchises or dilutes the voting power of an area to benefit a particular party. For example, red states love to split up cities/urban areas and group them with vast, disjointed areas of rural land. The result is even if the cities have most of the population, they hold little actual voting power. That's how places like Texas can be red even if the population trends more blue.
On a national scale, the situation is even worse. Due to gerrymandering, Democrats can earn millions more votes, yet hold fewer seats in congress. Not to mention, twice the Gop has taken the presidency without winning the popular vote, thanks in part to the gerrymandered districts.
Gerrymandered districts have nothing to do with the electoral college, unless you consider state lines drawn years ago as gerrymandering. At the federal level, the only thing gerrymandering effects is the House of Representatives.
Paul Ryan feeling the heat. Between this and Iron Stache, he's cooked.
If this does indeed land with striking down the WI maps, it'll be a lot of seats in jeopardy across the country. It affects both parties but almost assuredly hits at Republicans the most because they've used this as a way to control states where they are the minority party.
Man, this isn't enough to make me like Kennedy, but I can respect him for this moment here. Maybe we're not as boned as previously believed?
Seems like this case was touted since the beginning as essentially a coin flip on Kennedy.
balladofwindfishes
Member
Seems like this case was touted since the beginning as essentially a coin flip on Kennedy.
I'm not sure a coin flip is really the right way to frame it. Kennedy has already leaned towards getting rid of partisan gerrymandering, he just needed a bit more to push him, and that "more" was intended to be provided with this trial.
I think people are a bit more confident with this case because of its history with Kennedy. This case is something he's been looking forward to for a decade.
Not to say we know how he'll rule, but I'm not really sure 50/50 is really accurate odds.
I'm not sure a coin flip is really the right way to frame it. Kennedy has already leaned towards getting rid of partisan gerrymandering, he just needed a bit more to push him, and that "more" was intended to be provided with this trial.
I think people are a bit more confident with this case because of its history with Kennedy. This case is something he's been looking forward to for a decade.
Not to say we know how he'll rule, but I'm not really sure 50/50 is really accurate odds.
Things will hopefully go well for this, though I'd urge not to get hopes up. I also expect Kennedy will likely retire after this case.
hodayathink
Member
If this does indeed land with striking down the WI maps, it'll be a lot of seats in jeopardy across the country. It affects both parties but almost assuredly hits at Republicans the most because they've used this as a way to control states where they are the minority party.
In the 538 piece on this, I think someone said that if they used the test in this case (the Efficiency Gap), then something like a third of the maps in the country would have to be redrawn. I think Illinois would have to redraw theirs, and we lean heavily Democratic.
Mr. Wonderful
Member
Months from now. I dunno if there's a set date but they have till June
Two questions:
1. What do they spend that time doing? Do they continue to read up on laws and precedent in order to come to a decision?
2. If they decide in June next year, will it be too late for midterms?
1. If a majority hasn't made up its mind by the conclusion of oral arguments, the justices and their clerks will continue to argue over it until a resolution is reached. After that, it's just a question of assigning a person to write the decision (and any dissents or concurrences accompanying it). And this is happening alongside the same process for all of the other cases they're hearing, and new oral arguments, etc.Two questions:
1. What do they spend that time doing? Do they continue to read up on laws and precedent in order to come to a decision?
2. If they decide in June next year, will it be too late for midterms?
2. I don't know about the specifics of the Wisconsin situation and whether there are alternatives prepared in advance. There'd probably be time for the courts, at a minimum, to impose new temporary districts. It's assuredly too late for any other state's districts to be challenged using the SCOTUS decision and have those cases decided in time for the midterms.
To quote Inside Llewyn Davis: "Please, Mr. Kennedy!"PLEASE Scotus!
In the 538 piece on this, I think someone said that if they used the test in this case (the Efficiency Gap), then something like a third of the maps in the country would have to be redrawn. I think Illinois would have to redraw theirs, and we lean heavily Democratic.
Unfortunately, I'd be willing to take that hit for Illinois if it's a net positive.
Just means we got to urbanize more than Chicagoland!
Aztechnology
Member
They'll hear it, but unfortunately, it doesn't mean they'll listen.
I'm pretty sure the vote is almost immediately after oral arguments, so in all likelihood it has already happened (a co-worker worked at the 2nd Circuit and that's how justices there did it anyway). They spend the rest of the time researching and drafting opinions, basically.
That said, justices sometimes change their minds while drafting opinions, but it's rare.
That said, justices sometimes change their minds while drafting opinions, but it's rare.
timetokill
Banned
I don't think I'm being overdramatic when I say the future of the country is at stake with this decision.
I don't think I'm being overdramatic when I say the future of the country is at stake with this decision.
No where near dramatic... this really will decide how democratic our democracy is for decades.
brianmcdoogle
Member
Sorry I forgot to post this earlier. The Oyez project has put up the audio for oral arguments. IF you're never used Oyez, it's really cool because it tells you who is speaking along with highlighting text in case you don't know the voices of the justices.
Yes, Thomas says nothing, Kennedy asks no questions to the gentleman representing Whitford, and Ginsburg's smackdown is better in audio form.
https://www.oyez.org/cases/2017/16-1161
Yes, Thomas says nothing, Kennedy asks no questions to the gentleman representing Whitford, and Ginsburg's smackdown is better in audio form.
https://www.oyez.org/cases/2017/16-1161
brianmcdoogle
Member
Audio for oral arguments is now up on the official Supreme Court website if the Oyez project didn't work for you.
https://www.supremecourt.gov/oral_arguments/audio/2017/16-1161
https://www.supremecourt.gov/oral_arguments/audio/2017/16-1161
EdibleKnife
Member
Audio for oral arguments is now up on the official Supreme Court website if the Oyez project didn't work for you.
https://www.supremecourt.gov/oral_arguments/audio/2017/16-1161
Thanks for continuing to update this