Supreme Court Upholds TX Congressional District Lines for All Except One District

Today, the Supreme Court issued a decision in Abbott v. Perez, a racial gerrymandering challenge out of Texas.  The Court held that the lower court had used an improper intent analysis to invalidate congressional and state house district maps, that the lower court had improperly applied the “effects” test of Section 2 of the Voting Rights Act to invalidate three districts, and that the fourth challenged district was an impermissible racial gerrymander because the state did not prove narrow tailoring in its use of race.

Justice Alito wrote for the five-justice majority, noting that district map challengers bear the burden of showing discriminatory intent (citations omitted):

We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. . . . 

The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature, and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. 

The only other reason provided by the court was the observation that [Mexican-American Legal Caucus] “failed to show” that two majority-Latino districts in Nueces County would not perform. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established. Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013.

With regard to the invalidated district (citations omitted):

By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary map drawer “discussed the district with incumbents from other majority-minority districts[,]. . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population.  The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Texas’s showing here is not equivalent.

Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time. 

Also worth noting, the Court found that though the lower court did not label its order as an injunction, it functioned as an injunction and the lower court could not avoid review under 28 U.S.C. § 1253 by labeling the order something other than an injunction.

Justice Thomas has been alone in saying that Section 2 of the Voting Rights Act cannot justify using race in redistricting and that therefore requiring legislatures to form majority-minority districts by considering race is impermissible.  But today, Justice Gorsuch joined his concurrence in Abbott reiterating that stance, which may prove very important in future racial gerrymandering cases at the Supreme Court.

The Court also vacated and remanded Rucho v. Common Cause, a partisan gerrymandering challenge out of North Carolina that many liberals are hoping will meet the standing requirements of Gill v. Whitford, back to the district court for further proceedings in light of Gill.

While it may seem that little was decided today, the Court's reiteration of the appropriate burden of proof in redistricting cases is vital to courts consistently deciding redistricting cases according to actual legal principles.

Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 

Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 

While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  

Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):

In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .

Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):

In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

Supreme Court Hears Oral Argument in 7-Year-Long Texas Redistricting Case

The Supreme Court heard oral argument today in Abbott v. Perez, two consolidated racial redistricting cases out of Texas.  This is a long-running case:

“We’re seven years into the case after three trials and two appeals to this court,” said Texas Solicitor General Scott A. Keller.

At the threshold, there is a jurisdictional question about whether the matter is proper for the Court to hear:

In the latest incarnation of the case, a three-judge panel in Texas last summer said two congressional districts and a handful of legislative districts were unconstitutional, and called on the governor to convene the legislature to draw new lines.

Before that could happen, Texas went to the Supreme Court. In September, the court on a 5-to-4 vote put that order on hold until it could hear the case. 

But not waiting for the process to play out truncated things at a critical time, the liberal justices said Tuesday.

On the merits, the Court appeared divided along liberal and conservative lines during oral argument.  The conservative justices seemed to find persuasive that the Texas legislature adopted interim maps drawn by the district court to be used in the 2012 election:

Chief Justice Roberts said Texas has a “strong argument” that the new maps were adopted in large part to bring an end to long-running litigation over whether the maps were discriminatory. 

“It does seem to me that at the very least .... that ought to give them some presumption of good faith moving forward, which is significant to the determination of their intent to discriminate,” Roberts added.

This is a somewhat more "traditional" redistricting case, in contrast to the two partisan redistricting claims that the Court has already heard this term in Gill v. Whitford and Benisek v. Lamone.  The jurisdictional question and complicated procedural history of the two Texas cases make them distinct from many redistricting cases, but they still teach the same lesson: clarity is needed in the legal rules governing redistricting to avoid states, legislators, and individuals being involved in lengthy litigation where judges attempt to apply unclear standards to complex facts with widely varying results. If courts are going to decide redistricting cases, there must be clear, easily applicable standards, not arbitrary decisions depending on which judicial panel is selected to hear a particular case.

The "Solution" in Redistricting Is Worse Than the Problem

Charles Lane has good editorial entitled "This solution to gerrymandering is worse than the problem," explaining the dangers of why courts, even the Supreme Court, should not be involved in political redistricting. He likens it to the Supreme Court considering censoring “blue” or pornographic movies in the 1970s. Yes, it is distasteful but the alternative of the court deciding whether every film is “too blue” is not the best or appropriate role for a court.

Lane cites former moderate Justice Sandra Day O’Connor as having the right approach to redistricting:

As Justice Sandra Day O'Connor, the last member of the court with experience as a state legislator, put it in a 1986 opinion, the Constitution's guarantee of equal protection of the laws "does not supply judicially manageable standards for resolving purely political gerrymandering claims, and no group right to an equal share of political power was ever intended" by the document's authors.

Lane points out that Justices seem a bit confused on these political redistricting cases now before them:

"It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering," Justice Stephen Breyer observed. "But is there a practical remedy that won't get judges involved in every - or dozens and dozens and dozens of very important political decisions?"

Lane also explains the problem is overstated.  The respected left-of-center Cook Report concludes the redistricting problem is overstated:

Why risk fatally politicizing the courts to fight a problem that's not entirely to blame for our political dysfunction anyway? The Cook Political Report's David Wasserman and Ally Flinn found that redistricting explains only 17 percent of the decline in competitive congressional districts over the past 20 years. Partisan gerrymandering "may be just as much a symptom of America's political problems as a cause," writes Harry Enten, an expert on gerrymandering.

Lane’s conclusion is spot on:

Sandra Day O'Connor was right: The Supreme Court should leave partisan politics to the partisan politicians.

Supreme Court Hears Oral Arguments in Benisek v. Lamone, Maryland Redistricting Case

This morning, the Supreme Court heard oral arguments in Benisek v. Lamone, a First Amendment retaliation challenge to Maryland's 6th Congressional district lines.  This is the second partisan gerrymandering case the Court has heard this term, after Gill v. Whitford in October.  

The facts and arguments in Benisek are unique from those in Whitford, though both are partisan gerrymandering claims:

For two decades, the predominantly Republican district was represented in Congress by Republican Roscoe Bartlett, but in 2011, redistricting altered the political composition of the 6th district; the following year, Democrat John Delaney beat Bartlett by over 20 percentage points. The plaintiffs in the case live in the 6th district and contend that Democrats in Maryland engaged in partisan gerrymandering – that is, drawing a redistricting map to favor one political party at the expense of another – to retaliate against them for their past support of Republican candidates like Bartlett. And that, they argue, violated their First Amendment rights of speech and association. Maryland officials deny that any gerrymandering occurred. But even if it did, they maintain, courts should stay out of these kinds of First Amendment retaliation claims because there are no manageable standards for them to use to determine when partisan gerrymandering goes too far.

The Court has refrained from ruling on partisan gerrymandering cases in the past, and it is unclear how the Justices will rule on this set of cases:

If spectators had hoped that today’s oral argument might shed some light on how the justices had voted on the Wisconsin case, they were – unless the justices have excellent poker faces – largely disappointed. Instead, it seemed entirely possible that the justices were counting on the oral argument to give them new insight into a solution to the thorny problem of partisan gerrymandering. But before they even got that far, justices of all ideological stripes expressed doubt about whether they should rule on the partisan-gerrymandering question at all when the case came to them as a request for preliminary relief, rather than for a decision on the merits, and their ruling would come too late for any changes to the state’s congressional maps before the upcoming 2018 election. . . . 

When the justices did eventually turn to the question of partisan gerrymandering itself, the concern at the heart of the Wisconsin case resurfaced: How should courts evaluate claims of partisan gerrymandering? As Justice Samuel Alito stressed to Kimberly, the Supreme Court has recognized that redistricting is an inherently partisan process, and that a desire to give the party in power an advantage is not, standing alone, problematic. 

Moreover, there was no obvious consensus among the justices on how courts should determine when politics has played too strong a role in redistricting. . . . 

As RNLA Executive Director Michael Thielen wrote last week, courts are not the proper venue for resolving the political disputes inherent in redistricting.  But since it is unlikely that courts will re-invoke the political question doctrine and no longer decide redistricting cases, everyone on all sides of this issue agrees that the Court needs to provide clear guidance to prevent courts from acting arbitrarily when deciding redistricting cases.

Democrats Are Using Courts To Take Redistricting Power Away From Legislatures

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how Democrats are trying - successfully - to seize political control by using the courts to control redistricting:

Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.

Courts are increasingly deciding redistricting cases and enacting entirely new maps by judicial fiat:

Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters. 

Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.

The recent, overt seizure of power by the Democrat-controlled Pennsylvania Supreme Court to enact a map drawn by its selected expert provides is the starkest example of the Democrats' and their liberal allies' use of the courts to achieve a result they could not obtain through the ballot box or the people's representatives:

And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.

The U.S. Supreme Court has three redistricting cases pending before it this term, which could dramatically change the law on redistricting. We hope that the Court provides some clear guidelines in this important area before the post-2020 redistricting so that the Democrats cannot use litigation to seize control of the district lines.

PA GOP Describes Special Election Irregularities in Letter to PA SOS

The Republican Party of Pennsylvania asked acting Secretary of the Commonwealth Robert Torres to investigate several "irregularities" during last Tuesday's special election in the 18th Congressional District.  Democrat Conor Lamb won the race by just 627 votes over Republican Richard Saccone, a small enough margin that even a relatively small number of confused or disenfranchised voters could change the outcome of the race.

An attorney and authorized campaign representative was prevented from observing vote counting in Allegheny County:

First, an authorized campaign attorney, Russell Giancola, presented several forms of permissible credentials but was prevented from observing the computation of the vote count in Allegheny County Tuesday night. . . . While attorney Giancola was finally able to obtain this compliance with the inappropriate preconditions, the delay deprived the campaign of the right to have counsel present during the computation reporting process.

Allegheny and Washington Counties failed to provide the notice to military and overseas voter required by the Uniform Military and Overseas Voters Act.  Voting machines were not calibrated properly:

Third, we received multiple complaints throughout the 18th Congressional District regarding calibration issues involving the voting machines.  Numerous voters have called the Party and the Saccone campaign to complain that they selected Rick Saccone on the voting screen, only for Conor Lamb to appear on the confirmation screen.  It is our understanding that some of these issues were not resolved during the Special Election.

Poll workers failed to follow provisional ballot procedures:

Fourth, the Party received numerous complaints about voters not appearing on the voter rolls, and being denied the ability to cast a provisional ballot at their polling place.  In at least one instance, a voter was denied a provisional ballot at his precinct and directed to vote at his prior precinct in the neighboring county where he used to reside before moving several months ago.  This violates voters rights under the Help America Vote Act and Commonwealth's implementing statutes and regulations. In addition, given the closeness of this election, denial of the right to vote for even a small number of eligible voters could cast the outcome of this election into doubt.

When the Democrat-controlled Pennsylvania Supreme Court instituted a new congressional district map last month, it kept the previous lines for Special Election.  Both U.S. Supreme Court Justice Samuel Alito and a three-judge panel of the U.S. District Court for the Middle District of Pennsylvania declined to overturn that new map today (more about that on this blog tomorrow).  When voters tried to search for their polling place, they were incorrectly shown polling places under the new map:

Finally, as your office was made aware on election day, the Department of State's website www.votespa.com errantly directed voters to polling places matched to their address under the recently imposed Pennsylvania Supreme Court map . . . rather than the congressional district lines in use for the Special Election.  Since election day, we have heard from potential voters in Pennsylvania's 18th Congressional District who attempted to vote but were informed that they did not live in the district any longer. 

This illustrates some of the ills of court-ordered district maps - they create confusion for voters, generate administrative hassles (and opportunities for errors) for election officials, and disrupt constituencies mid-term.

We hope that the Pennsylvania Department of State takes these allegations seriously and investigates these irregularities so that the integrity of future elections is not called into question.

The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).

PA Legislators Ask Supreme Court to Stay Usurpation of Redistricting by PA Supreme Court

On Tuesday, Pennsylvania Speaker of the House Michael Turzai and Senate President Pro Tempore Joseph Scarnati filed an emergency application with Justice Samuel Alito to stay the imposition of a new congressional map by the Pennsylvania Supreme Court pending resolution of the case by the entire U.S. Supreme Court.  Counsel to the Pennsylvania legislators include RNLA members Jason Torchinsky and Phillip Gordon of Holtzman Vogel Josefiak Torchinsky PLLC and Mark Braden of Baker & Hostetler LLP.  

They described the intentional usurpations of the political process by the Democrat-controlled Pennsylvania Supreme Court (internal citations and notes omitted):

This case arises from the Pennsylvania Supreme Court’s usurpation of the Pennsylvania General Assembly’s legislative authority to draw its congressional district lines through its preordained invalidation of the lawful districts the General Assembly enacted in 2011 (the “2011 Plan”). At all stages, the Pennsylvania Supreme Court set this case on a path whereby only it would draw Pennsylvania’s new congressional districts—a task delegated to the “Legislature”—in violation of the Elections Clause. But as Justice Kennedy stated in League of United Latin Am. Citizens v. Perry, “drawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance. * * * As the Constitution vests redistricting responsibilities foremost in the legislatures of the States and in Congress, a lawful, legislatively enacted plan should be preferable to one drawn by the courts.” . . . The Pennsylvania Supreme Court conspicuously seized the redistricting process and prevented any meaningful ability for the legislature to enact a remedial map to ensure a court drawn map.  

First, on January 22, 2018, the Pennsylvania Supreme Court issued an order enjoining the 2011 Plan because it failed to comply with purported mandatory requirements found nowhere in the Pennsylvania Constitution . . . . Second, the Pennsylvania Supreme Court provided an inadequate remedial opportunity to the General Assembly, thus ensuring a court drawn map. It did not issue an opinion with its initial order and did not provide its sufficient guidance on how a new map could be drawn in compliance with the Pennsylvania Constitution. It nevertheless gave the General Assembly a mere 18 days, until February 9, to enact new legislation before the Court would impose a plan of its own, and even reserved the right to review the enacted map. Indeed, that was the court’s intention all along. It proceeded to hire a political scientist to prepare for a judicial, rather than a legislative, redistricting. . . . 

. . . [T]he Pennsylvania Supreme Court’s intentional seizure of the redistricting process is now complete. On February 7—just two days before the deadline that the Court imposed to enact a new plan—the Pennsylvania Supreme Court issued an opinion . . . . The General Assembly’s leadership rushed to prepare a plan to comply with the court’s opinion, but, given the two-day timeframe, it was unable to put a plan to a vote or negotiate a mutually agreeable plan with the Governor. It submitted that plan to the court and the Governor for review on February 9. On February 19, the Pennsylvania Supreme Court adopted its own plan. The parties to the litigation had never before seen the court’s plan and had no opportunity to vet for compliance with the court’s own criteria. 

By promulgating mandatory criteria the General Assembly could not anticipate in 2011, and that are found nowhere in the Pennsylvania Constitution, withholding guidance as to how to achieve compliance with Pennsylvania law until two days before the court’s imposed deadline to enact a new plan, creating a proportional-representation criterion that is practically impossible to implement, and imposing a remedial plan that had been in the works all along, the Pennsylvania Supreme Court ensured that its desired plan to draft the new map would be successful.  

Organizations such as the American Civil Rights Union filed non-partisan maps with the Pennsylvania Supreme Court, but of course the court was not interested in a map that was not drawn by its hand-picked expert.

Justice Alito requested a response to the application by 3:00 PM Eastern on Monday.  We can expect a decision soon, as he denied the application to stay following the Pennsylvania Supreme Court's initial order 10 days after the application was filed.

Pennsylvania Redistricting - Impeach PA Supreme Court Justices for Violating the PA Constitution?

Late last month, the Pennsylvania Supreme Court issued a ruling that congressional redistricting maps drawn after the 2010 census and in use for the last 3 election cycles (2012, 2014, and 2016) violated the Pennsylvania  Constitution.

Their solution was to have the State Legislature (with a Republican majority in both chambers) draw a new map and have Governor Tom Wolf (Democrat) approve the new map all in the span of three weeks--something that normally takes several months of planning under the best circumstances. Or, the Pennsylvania Supreme Court would draw a new map instead.

Needless to say, the Legislature and the Governor did not arrive at an agreement. So, the Pennsylvania Supreme Court imposed a new map for congressional districts that take effect this spring for the 2018 primaries.

The Pennsylvania Supreme Court's vote came down to a party-line vote, with the Democratic-elected justices voting to overturn the current map (In Pennsylvania, all judges — including Supreme Court justices — are elected by voters and run as either a Democrat or Republican candidates for ten-year terms and then retention.).

Now Pennsylvania elected officials are bringing up the idea of impeaching Pennsylvania Supreme Court justices for a ruling which is a clear attempt to govern from the bench and, worse, not abiding by the Pennsylvania Constitution.  The Philadelphia Inquirer published an article about this prospect today:

[S]tate Rep. Cris Dush of Jefferson County, raised the idea a few weeks ago, the rhetoric has intensified. This week, U.S. Rep Ryan Costello of Chester County said the justices “should be impeached” and U.S. Sen. Pat Toomey said the idea is worth discussing... Constitutional law scholars disagree on whether there may be grounds for impeachment — the first step in removing the elected justices from office. Dush and his supporters say the Democratic justices who voted 5-2 to invalidate the 2011 congressional map passed by the GOP-led legislature violated the U.S. Constitution by trampling over the redistricting rights that by law belong to the general assembly...

As of Thursday, no impeachment bill had been introduced. But in the memo he circulated to fellow lawmakers, Dush contended the high court’s ruling redrawing the congressional map “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution.”... “They have absolutely no authority to say that if the governor vetoes, that it does not come back to the legislature. That is specific under the constitution. I am protecting the rule of law,” Dush said when confronted by protesters earlier this month. “This is not about gerrymandering.” Republicans have also broadly argued that the court usurped the authority of the legislative and executive branches...

The Inquirer explains that Pennsylvania elected officials may be about to venture into unchartered territory:

The state constitution does not say very much about impeachment, which is essentially the legislative process of formally accusing an official with wrongdoing. The constitution says, in part: “The Governor and all other civil officers shall be liable to impeachment for any misbehavior in office.” But the constitution does not define the term misbehavior, leaving state lawmakers to decide what conduct should trigger removal from office...

[According to one state constitution expert:] “If state lawmakers “believe judicial norms were trampled, they get to say if that’s an impeachable offense,” he said. “No one can second-guess them.”  

In the meantime, Pennsylvania Republicans are planning to appeal this new map to the U.S. Supreme Court again as well as turn to a three-judge federal panel as prescribed by federal statute.

We will keep you posted on future developments in the Pennsylvania redistricting controversy as it continues.

Dissecting the Pennsylvania Supreme Court's Redistricting Order

Yesterday, the Supreme Court of Pennsylvania handed down a per curiam order regarding a recent redistricting lawsuit that worked its way up through the Pennsylvania Courts: League of Women Voters of PA v. Pennsylvania.

At issue, the congressional district boundaries drawn after the 2010 census. The ruling fell along roughly partisan lines, with 4 justices ruling its congressional map was unconstitutional with another justice concurring in part (the unconstitutionality) and dissenting in part (the remedy put forth by the majority). Meanwhile, the two remaining justices dissented to the order in its entirety (see below).

The crux of the order declared:

[This] Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined. . . .

The Court's order continues by detailing how a new map will be redrawn in time for Pennsylvania's 2018 Primary, which is less than four months away. The order allows the Republican-majority Pennsylvania General Assembly to redraw the congressional districts within the Commonwealth, but they must submit their proposal by February 9, 2018, which must be approved by the Democratic Governor Tom Wolf--just 19 days. If the Governor and the Pennsylvania General Assembly fail to come to an agreement--which is possible, if not entirely likely--the Supreme Court of Pennsylvania will redraw the congressional districts for Pennsylvania.

The Court ended its order by issuing an exemption for Pennsylvania's 18th Congressional District, which is in the midst of a special congressional election, scheduled for March 13th. However, every other district is subject to be redrawn. The Court stated a full opinion is forthcoming.

Chief Justice Saylor offered a salient dissent:

Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whitford [citations omitted]. Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week [Rucho v. Common Cause] [citations omitted]. I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle [citations omitted]. . . The crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution. See U.S. CONST. art. I, §4. . . .

Justice Mundy expanded on Chief Justice Saylor's dissent by stating:

I join Chief Justice Saylor’s dissenting statement in full. I write separately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis [citiations omitted].

The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map. I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court. In my view, the implication that this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”) (emphasis added) [remaining citations omitted].

Both dissents highlight U.S. Consitution issues, which the Supreme Court of Pennsylvania's per curiam order attempted to carefully avoid. 

Meanwhile, Pennsylvania GOP leaders from the Pennsylvania General Assembly announced that they will seek a stay from the Supreme Court of the United States.  In a joint statement, GOP leaders declared: “It is clear that with this ruling the Court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench.” GOP leaders hope the U.S. Supreme Court will intervene as they did in North Carolina.

We will keep everyone posted on this story and informed of likely developments over the next couple weeks.

Redistricting Litigation Update

The past few weeks have been very busy for redistricting litigation.  Here is the status of some of the current cases:

• The Supreme Court agreed to hear consolidated Voting Rights Act and racial gerrymandering challenges to the state legislative and congressional districts in Texas (Abbott v. Perez), setting aside questions of jurisdiction until after briefing on the merits.  The court declined to hear a partisan gerrymandering claim from Texas for lack of jurisdiction (Texas Democratic Party v. Abbott).

• A three-judge district court found the re-drawn North Carolina congressional districts to be an impermissible partisan gerrymander and, in a lengthy 191-page opinion, ordered the map re-drawn, again, by January 24 (Common Cause v. Rucho).  This is the first time a court invalidated a congressional map on partisan gerrymandering grounds.  North Carolina appealed to the Supreme Court for a stay, and the original three-judge panel has refused to delay its order.

• A three-judge court in Pennsylvania dismissed a partisan gerrymandering claim against Pennsylvania’s congressional districts (Agre v. Wolf). 

• The Supreme Court of Pennsylvania heard oral arguments today in a separate challenge to the Pennsylvania map under the state Constitution.  A Commonwealth Court judge who reviewed the evidence in the case found that the congressional district lines were not unconstitutionally gerrymandered, but Pennsylvania’s Supreme Court leans heavily Democratic.

The consolidated Texas cases now join two partisan gerrymandering claims already pending before the Supreme Court this term, Gill v. Whitford out of Wisconsin (argued in October) and Benisek v. Lamone out of Maryland (oral argument date not scheduled yet).  And there are also pending redistricting cases in Georgia, Michigan, and Virginia. 

With all of this pending litigation, the rules governing redistricting are far from settled.  The maps currently being litigated are ones drawn after the 2010 census, over 7 years old at this point.  And in some cases, such as North Carolina’s congressional districts, the map currently being litigated is one that was re-drawn after the last round of post-2010 litigation. 

As we look forward to the 2020 census and the next round of redistricting, Democrats are making redistricting strategy and litigation, as well as winning majorities in state legislatures, a priority, including attracting the focus of Barack Obama and Eric Holder.  Republicans are just beginning to counter the Democrats’ efforts.  But at this rate, legislatures might not even know what the governing rules are when it is time to draw the new maps in 2021, and even if the rules are set by 2021, Democrats have shown how willing they are to change the rules after the fact through litigation. 

Stay tuned to this blog and RNLA’s Twitter feed for updates on these cases.

Supreme Court Grants Cert in Maryland Redistricting Case

To the surprise of Supreme Court observers and election lawyers, on Friday the Supreme Court agreed to hear a second political gerrymandering case this term, this time out of Maryland:

In October, the justices heard oral argument in a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011 [Gill v. Whitford]. Today they agreed to weigh in on Benisek v. Lamone, a challenge to another redistricting plan enacted in 2011, in which the plaintiffs allege that Democratic election officials in Maryland gerrymandered the state’s 6th congressional district in retaliation for the plaintiffs’ support for Republican candidates – specifically, Roscoe Bartlett, who represented them in Congress for two decades.

Most Court observers assumed that the justices would not hear Benisek, or any other political gerrymandering cases, until they had decided the currently pending case, Gill v. Whitford.  While the plaintiffs in Whitford challenged the map for the entire state, the Benisek plaintiffs are challenging just one district:

The plaintiffs told the justices that “the mapdrawers reshuffled fully half of the district’s 720,000 residents—far more than necessary to correct the mere 10,000-person imbalance in the district’s population following the 2010 census.” As a result, they explained, “registered Republicans’ share of the electorate fell from 47% to 33%,” and Bartlett lost his seat to a Democrat, John Delaney.

The claim is slightly different in Benisek as well, as it is based in the First Amendment.  A dispute over what must be proven under such a claim and whether the Court has the authority to hear the case are before the Court:

The issues before the court center on what plaintiffs in a First Amendment retaliation challenge to partisan gerrymandering must show for their case to go forward. According to the plaintiffs in this case, the district court would have required them to show that “each and every outcome is (and will continue to be) singularly attributable to gerrymandering.” But all they should have to show, the plaintiffs maintain, is that they have suffered some injury.

The decision to grant cert in this case, in addition to Whitford, may indicate that the justices will issue a broad, joint opinion laying out the rules for political gerrymandering claims.  Or, the Court may decide the cases separately and on very narrow grounds (perhaps on a jurisdictional issue, instead of reaching the claims on the merits).  While this Supreme Court term previously had the potential to change the legal landscape for redistricting, that is even more true now that another partisan gerrymandering case is before the Court.  Oral argument in Benisek has not yet been scheduled.

John Ryder on Whitford: Plaintiffs Ask Courts to Make Political Judgments

RNLA Co-Chair John Ryder wrote a post-oral argument summary of the issues in Gill v. Whitford, the Wisconsin political gerrymandering case, in the Daily Caller today.  He outlined how the Plaintiffs challenging the district boundaries in Wisconsin would like courts to make political judgments far outside a proper judicial role that would completely change how districts and representation are viewed:

Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court. 

The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution. 

As Mr. Ryder points out, Chief Justice Roberts questioned the serious danger for the proper role of the courts posed by the Plaintiffs' theories during oral argument:

[I]f the claim is allowed to proceed, there will naturally be a lot of those claims around the country. . . . We will have to decide in every case whether the Democrats win or the Republicans win. . . . 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. . . . [T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to . . . sociological gobbledygook.

 The Chief Justice was not alone in his criticism:

Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.” . . . Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections. . . .

We hope that the Supreme Court will not take the bait and drastically expand the role of the courts into making political judgments and predictions that even professional political scientists would struggle to make.  As Mr. Ryder concluded:

In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.

A Line the High Court Shouldn’t Cross - Gill v. Whitford

Today, the Wall Street Journal published an opinion by RNLA Co-Chair John Ryder on the topic of Gill v. Whitford, the Wisconsin state redistricting case before the U.S. Supreme Court. Mr. Ryder understands this issue better than most as a former general counsel of the Republican National Committee.

In the commentary, Mr. Ryder nicely summarizes Whitford as this:

The plaintiffs will present a series of equations giving the illusion of precision and, they hope, masking their underlying political motivation. If the justices accept the plaintiffs’ argument, or any of its variations, it would put the courts deep into what Justice Felix Frankfurter called the “political thicket” of drawing political maps. More important, it would undermine a bedrock principle of American politics—that we elect representatives based on electoral districts, not proportionally as in many European countries. 

The idea that judges have any say in the mapping of political districts is relatively novel. Until Baker v. Carr in 1962, the Supreme Court had routinely held that redistricting was a “political question,” beyond judicial review. Baker presented the court with an egregious case of abuse [which compelled the Court to take action] . . . Baker held that the courts could order a redistricting to correct this imbalance. . . . Fast forward 55 years, and we have plaintiffs who argue that because redistricting hasn’t yielded the results they want, they are entitled to judicial intervention. Their theory comes down to this: A political party’s representation in a state legislature should be close to its statewide vote total in legislative elections.

Whitford could potentially upend how districts are drawn and the standards by which districts are measured:

The consequences of this proposition would be immense. First, it would require the court to settle on the correct formula. . . . It raises the possibility of endless litigation over the correct standard, with judges struggling to make sense of testimony from dueling mathematicians. In the end, it would require courts to determine the “appropriate” political balance in the state. . . . Second, such a standard would likely require bizarrely configured gerrymanders in order to achieve the judicially determined political balance. Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” . . . From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%. . . . The only way to avoid that is to draw elongated districts that splinter communities and are gerrymandered to achieve a judicially determined political result.

Mr. Ryder concludes by arguing the U.S. Supreme Court has the chance to prevent a further descent down a slippery slope, the ultimate end of which could fundamentally change the means by which our representatives are elected.

It changes the basis of representation from district-based to proportional. Instead of representing a community that is mostly compact and cohesive, the lawmaker would be selected according to a statewide partisan balance determined by the court. . . . In Gill v. Whitford, the Supreme Court has an opportunity to put an end to this nonsense by finding that the lower court ignored precedent and misapplied the law. It should do so in order to preserve our democracy.

The Supreme Court heard oral arguments this morning for Gill v. Whitford, a case likely to be one of many landmark cases for the 2017 Term. You can view the released court transcript from today's argument here. An audio recording of the proceedings is expected by the end of this week and should be posted here.