Hans von Spakovsky on the “political thicket” of partisan gerrymandering, the import of the U.S. Supreme Court’s decision in Wisconsin redistricting case Gill v. Whitford, and the risk of transforming federal courts “into weapons of political warfare.”
Under the Voting Rights Act, states are also in trouble if race is the predominant factor in their redistricting. But they are allowed to use some race in redistricting to comply with the VRA and protect minority voting rights. How much race they can use is unclear —- it has to be “just right,” which is why I call it the Goldilocks Rule of Redistricting.
Until now, however, the Supreme Court has stayed out of political gerrymandering as opposed to claims over racial gerrymandering or unequal populations in districts. The holding in the Wisconsin case violates prior precedent of the Supreme Court. . . .
Drawing up political districts is, by its very nature, a political exercise by the legislative branch. How could one possibly determine how much or how little politics is acceptable in the redistricting process? The Constitution says nothing about this at all, other than to give state legislatures the authority to draw not only their own state legislative districts, but congressional districts as well. . . .
In Cooper v. Harris, a North Carolina redistricting case that the Supreme Court decided on May 22, dissenting Justice Samuel Alito echoed Justice Frankfurter when he warned the Court against transforming the federal courts “into weapons of political warfare.” Otherwise, they will “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.”
That is exactly what is going on this case.
With city council candidates facing a February 17 filing deadline, the Fifth Circuit scheduled an expedited hearing in Pasadena, Texas’ redistricting case for February 1.
The Fifth U.S. Circuit Court of Appeals will consider whether to temporarily halt the order from the Houston judge, which would enable the system of six single member districts, and two at large seats put in place in 2014 to remain.
If a judge issues a ruling in the city’s favor, it will impact city council elections that will be held in May, and reverse a decision earlier this month ordering the city to use the 2011 eight member single district model for the coming elections.
Earlier this month, a district judge ruled that the city’s two at-large voting districts violated Section 2 of the Voting Rights Act.
Stayed, for now:
The U.S. Supreme Court on Tuesday put a court-ordered legislative redistricting and 2017 special election on hold while it reviews Republican legislators’ appeal in an ongoing lawsuit.
A lower federal court ruled months ago that the current legislative districts are an unconstitutional racial gerrymander, and it ordered the General Assembly to draw new districts by March 15 and hold a rare off-year election in altered districts this November.
Tuesday’s Supreme Court order puts that order on hold at least until a Jan. 19 conference among the justices at which they will consider an appeal seeking to keep the current districts in place.
State legislators responded along party lines, with Republican House and Senate leaders saying in a joint statement, “We are grateful the U.S. Supreme Court has quashed judicial activism and rejected an attempt to nullify the votes of North Carolinians in the 2016 legislative elections,” while disappointed Democratic Rep. Graig Meyer said, “For Democrats, this is a setback in our plans for winning back power in the legislature, but it does not stop our momentum.”
The U.S. Supreme Court heard arguments Monday in two cases centered on “an issue at the heart of race and politics: drawing legislative districts based on race.”
Black voters in Virginia and North Carolina contended that political maps illegally pack those voters into a small number of districts, eliminating African Americans’ ability to influence results in adjacent contests. Republicans lawmakers who drew the maps say they intended to comply with the Voting Rights Act, which has been read to prohibit eliminating safe districts for minority incumbents, or to harm Democrats for partisan, rather than racial, reasons.
While it is illegal to discriminate on the basis of race, the Supreme Court has never held it unconstitutional to disadvantage voters for partisan reasons. Monday’s cases, as several justices remarked, were difficult to resolve partly because of the political reality that race and partisan preference are strongly aligned.
The two cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris, were argued separately but by the same attorneys: Paul Clement for Republican state officials defending their maps and Marc Elias for Democrats challenging the maps.
“It is a very tough matter,” observed Justice Stephen Breyer, summarizing the questions with which the justices were grappling today. Federal law permits (and sometimes requires) states to consider race when drawing district lines, to create legislative districts in which a majority of voters are members of a minority group, but at the same time the Constitution bars states from making race the predominant factor when drawing districts. “No one,” Breyer continued, “seems to have a good answer to” the dilemma facing the Supreme Court – how courts should determine when the use of race becomes sufficiently pervasive that it crosses over to become unconstitutional racial gerrymandering, particularly when race correlates closely with political party.
SCOTUS will have an answer, if not a good one, by summer.
AP reports that cities are becoming the new battleground for voting rights cases – many are the least able to defend these suits.
…Attorneys who helped dozens of Texas cities and counties redraw their political boundaries after the 2010 Census said cities moving to change their election systems aren’t necessarily attempting to discriminate, and are eager to move beyond the bureaucratic process of the Voting Rights Act. “Not because of nefarious purposes,” said Chris Gober, a conservative Austin attorney who has represented Republicans in redistricting cases. Previously, “The bottom line…is that it imposed real administrative burdens.”
“Twelve months after hearing arguments in the case, the N.C. Supreme Court issued a ruling Friday upholding the Republican-led redrawing of state congressional and legislative districts in 2011.”