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OpinionThe Supreme Court Could Make Gerrymandering Worse

19:30  07 january  2019
19:30  07 january  2019 Source:   theatlantic.com

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Worse , Benisek could potentially entrench gerrymanders and prevent lawmakers from acting in good faith to abolish them. Once upon a time, when the Supreme Court appeared to have abdicated its responsibility to police partisan gerrymanders , and Benisek was the best shot at appealing to a

Supreme Court Justice Anthony Kennedy’s looming retirement and all but certain replacement with partisan Republican extremist Brett Kavanaugh will likely soon see the court deal a monumental blow to the fight against widespread GOP gerrymandering , but there’s one critical way progressives can

The Supreme Court Could Make Gerrymandering Worse© Joshua Roberts / Reuters

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

The Supreme Court’s decision on Friday to take up partisan gerrymandering cases from North Carolina and Maryland brought to mind a saying attributed to Judy Garland: Behind every cloud is another cloud.

The now firmly conservative Court likely took the cases not to announce that such activities violate the Constitution, but to reverse the lower courts that said they do. Down the road, the Court might do much more damage, including by preventing states from using independent commissions to draw congressional districts.

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Jeffrey Toobin writes about the Supreme Court case Gill v. Whitford, which dealt with It will probably take another year or so for a reworked gerrymandering case to make its way back to the Here’s a safe rule of thumb for news developments in the Trump era: it’s almost always worse than you think.

Justice Anthony Kennedy could provide the deciding vote in Gill v. Whitford, an upcoming case that looks at gerrymandering in Wisconsin. When the worst blizzard in 130 years pummeled Madison, Wisconsin in February 2011, something impossible happened: It stranded Green Bay Packers fans

For years, the Supreme Court has ducked the question of partisan redistricting, failing to provide clear guidance on its constitutionality. Until he left the Court this summer, Justice Anthony Kennedy was the key swing vote on this issue. In 2004, he disagreed with conservatives that such cases present “political questions,” which courts cannot hear given the lack of “judicially manageable standards.” And he disagreed with liberals that any as-yet-proposed standards adequately separated permissible from impermissible consideration of partisan information in drawing district lines. But he suggested that the First Amendment’s right of association could serve as the foundation of a ruling against gerrymandering.

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The U.S. Supreme Court agreed on something unanimously this week: The justices want nothing to do with solving the nation’s extreme partisan gerrymandering What’s gone unsaid, however, is how the court itself helped create this mess — and why their latest dodge seems likely to make it even worse .

People including Bill Millhouser protesting gerrymandering outside the Supreme Court on Tuesday. The court was hearing a case based on voting “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering

Justice Elena Kagan took Kennedy up on that suggestion in a case the Court (sort of) decided last term, Gill v. Whitford. Plaintiffs argued that Wisconsin Republicans had drawn district lines to give them asymmetrical advantage over Democrats in state legislative elections. The Court, in an opinion by Chief Justice John Roberts, unanimously dismissed the case on standing grounds, sending it back to the lower court for further proceedings. But Kagan, in a concurrence joined by three other liberals, set forth a First Amendment, associational-injury theory of partisan gerrymandering that was designed to appeal to Kennedy. Kennedy did not bite and soon retired from the Court.

Although Kennedy’s replacement, Justice Brett Kavanaugh, did not decide any gerrymandering cases as a lower-court judge, his general disposition lines him up with the other conservatives on the Court who believe that the judiciary has no business policing gerrymandering. In the Maryland and North Carolina cases the Court just took, both lower courts were willing to act as the police. Because of a procedural quirk, a decision by the Supreme Court not to hear these cases would have counted as an acknowledgment that the lower courts got the question right. So there’s every reason to expect 5–4 reversals unless a conservative justice or two goes rogue, or gets cold feet.

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WASHINGTON — The Supreme Court declined on Monday to address the central questions in two closely watched challenges to partisan gerrymandering , putting off for another time a ruling on the constitutionality of voting districts designed by legislatures to amplify one party’s political power.

The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S Yet, despite the anti-democratic effects of gerrymandering and other quirks of America’s legislative redistricting process — Republicans currently enjoy a

That’s not the only cloud on the horizon when it comes to the Court and redistricting. In a 2015 case out of Arizona, as I explained in more detail in a blog post for the Harvard Law Review, Kennedy joined in Justice Ruth Bader Ginsburg’s majority opinion holding that voters have the right to use a ballot initiative to establish independent redistricting commissions. But the Arizona legislature convinced Roberts—along with three conservatives—that because the Constitution gives the power to set congressional election rules to state “legislatures,” voters acting through the initiative process had unlawfully usurped legislative power. Roberts wrote an impassioned dissent.

A case raising this question could come back before the Court soon enough from one of the other states that has established these commissions. And, should Roberts choose to spend his capital in this way, he could well reverse the Court’s very recent precedent.

This development would be profoundly troubling. It is one thing for federal courts to say that they have no business deciding how much politics is too much politics when state legislatures draw district lines. It is quite another to say that the voters of a state, acting through the powers they have under state constitutions, cannot come in and offer a solution to deal with an area of intense legislative self-interest. The Court would be ruling, in effect, that legislators may choose their voters, not the other way around, and that there’s nothing voters can do about it.

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The Supreme Court justices seemed to grasp the problem of gerrymandering in oral arguments on Wednesday and that it will only get worse , as In 2004, he provided the fifth vote for the court staying out of partisan gerrymandering cases, but he made it clear that he remained open to finding a way to

For example, it may explain the Supreme Court ’s rather puzzling revisit to the political gerrymandering question this Wednesday, in a Deciding cases like this, though, is why judges make the big bucks. But that it’s hard doesn’t mean it can ’t be done well. The worst possible result of these

Yet one more cloud in the districting arena: The Trump administration is enmeshed in a legal struggle, headed to the Supreme Court, over its attempt to put a question about citizenship status on the 2020 census. According to the Department of Justice, the question will help it enforce the Voting Rights Act. But opponents believe that the question will depress census responses in areas with large populations of undocumented residents, and thereby lower representation for these areas. (The Court will hear a case in February over whether plaintiffs can force Commerce Secretary Wilbur Ross and a Justice Department official to testify as to the government’s true motive in adding the citizenship question.)

If the Trump administration gets its way on the census, one problem will lead to another: A recent Commerce Department notice stated that it would provide citizenship information to jurisdictions that wanted to use the data to draw new district lines after the next census. It’s not clear if that’s constitutional. In 2016, in Evenwel v. Abbott, the Court left open the question of whether states and localities must draw legislative districts with equal numbers of people—the traditional method—or of people eligible to vote. If the Court ends up favoring the latter standard, that would shift power away from cities and Democratic areas with larger noncitizen populations.

Ultimately, a citizenship question on the census could depress response rates in Democratic areas, reduce representation in Democratic areas, and lower population-related federal resources coming to these areas.

These days, no one expects the Supreme Court to lead the way on political reform. But it could do much worse than nothing; it could actually stymie political reform when it works its way through the democratic process.

Ginsburg misses third consecutive day at Supreme Court.
Supreme Court Justice Ruth Bader Ginsburg was absent from the bench for a third straight day on Wednesday. 

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