Kennedy Is Key to Supreme Court Outcome on Partisan Maps
Kennedy Is Key to Supreme Court Outcome on Partisan Maps
Outside of the Supreme Court building in D.C. people gather for the #FairMaps rally. Lauryn Gutierrez Rewire
04 October, 2017, 01:14
The justices will take a close look at Wisconsin, where Republicans drew an electoral map after the last census that was created to ensure they would retain a 60-vote supermajority in the state Assembly even if a majority of the state's voters chose Democrats.
Throughout the session, the justices and lawyers alike appeared to cast their questions and remarks with the hope of attracting Kennedy. The court will decide all three by June. The effects of gerrymandering and the voter suppression laws have been amplified by supposed "strict constructionists" construing the First Amendment guarantee of free speech so loosely as to strike down laws governing campaign financing. Early in the argument, Kennedy appeared to signal that he thought partisan gerrymanders violate the First Amendment, a view he also hinted at in a 2004 opinion. For example, according to Justice Kennedy, employees can hire the same lawyer, advance the same evidence, and collaborate in the prosecution of their claims. Justice Clarence Thomas asked no questions but he is expected to side with the conservatives.
The case concerns the map approved in 2011 for the Wisconsin Assembly.
If the court opens the door to partisan challenges, he said, "every one of these cases will come here".
Kennedy suggested that courts could be involved in placing limits on extremely partisan electoral maps. They said repeatedly that it was the Obama administration's labor board that changed sides when it held for the first time in 2012 that mandatory individual arbitration provisions abridge employees' rights to act in concert. The yield, for Republicans in the U.S. House of Representatives, was as many as twenty-two additional seats-enough of a surplus to account for nearly all of the G.O.P.'s advantage in the chamber.
After winning control of the state legislature in 2010, Wisconsin Republicans redrew the maps for the state assembly to their considerable benefit.
The heightened Democratic focus on state legislatures will be tested this fall in Virginia, where the party will try to chip away at the GOP's almost 2-to-1 state assembly majority, and Nevada, where Republicans are pushing to recall several sitting Democrats in a bid to change party control of the state Senate.
This wasn't just a problem in Wisconsin. The plaintiffs in the case are average Wisconsin citizens who believe deeply in democracy and believe that the right to vote is a right worth fighting for. The result was that Republicans had a virtual lock on four times as many state legislative and US House seats as Democrats did. They have concocted an "efficiency index", showing that the state's district lines leave many more Democratic than Republican voters with legislators they oppose.
The U.S. Supreme Court today heard oral arguments in Gill v. Whitford, a case that challenges Wisconsin electoral maps on partisan gerrymandering grounds.
"It's a fixed system - that's what gerrymandering is all about", he said.
State and federal legislative district boundaries are reconfigured after the US government conducts a census every decade to make each one contain about same number of people. Sheldon Whitehouse said in a Supreme Court brief. Now that Justice Neil Gorsuch has joined the court he will presumably break a tie. Justices Elena Kagan and Sonia Sotomayor quickly countered that partisan map-drawers rely on advanced social sciences and technology as a matter of course, and that Wisconsin's drawers had used such methods to create the most partisan map possible. Moreover, the composition of the court that is now deliberating on the gerrymandering case is itself the product of an extra-constitutional exercise of power by a Senate majority that refused to perform its constitutional duty of considering a nomination by the then-incumbent president. The group includes some people facing deportation because they've committed a crime and others who arrived at the border seeking asylum.
He pressed the state's lawyers about whether it would be unconstitutional for the state to simply declare that it was going to favor one party over another.
"I suspect that that's manageable", Breyer said. It also triggered an especially passionate response from liberal Justice Stephen Breyer. The Framers pointed us in that direction, not toward entrusting (sometimes partisan) judges with the impossible task of eliminating partisanship from politics. "It worked", she said, referring to Republicans' huge legislative majorities. They worked in secret to fashion precise, computer-generated maps and won approval on a party-line vote. Justice Ruth Bader Ginsburg asked. "What's really behind all of this?"
"What incentive is there for a voter to exercise his vote?"
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