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.
The rule of law is back in style:
And just in time. President Trump’s first Supreme Court nominee Neil Gorsuch, who “considers the Constitution a document that limits the power of government, not as a mere suggestion to be argued around,” will join the Court as it is set to deliberate on a number of voting cases that will affect how states safeguard the integrity of their elections.
From voter ID to redistricting to obligations to keep clean voter rolls, the Court is primed to decide how we vote in the 21st century.
In an array of voter ID cases, the Court may decide if the treasured Voting Rights Act has morphed into a tool not to protect civil rights, but to protect the interests of Democrats.
North Carolina enacted measures designed to preserve the integrity of elections, including voter ID and limits on the registration of voters on Election Day before their eligibility could be verified. Newfangled theories of the Voting Rights Act led one appeals court to graft disparate impact tests onto the law that formerly required actual victims of racial discrimination in order to win a case.
That appeal is now moving toward an evenly divided Supreme Court — divided no more when Gorsuch is confirmed.
On election process issues like voter ID, verifying voter citizenship, maintaining clean voter rolls, and redistricting, “[w]hen it comes to how states run their own elections, Gorsuch should be refreshing.”
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.”
Texas’ Attorney General asked the U.S. Supreme Court to take up the state’s voter ID case in a reply filed Tuesday in support of a petition for a writ of certiorari.
Plaintiffs do not dispute that they did not show that Texas’ voter-ID law (SB14) caused a racial disparity in voting participation, and the district court acknowledged that “Plaintiffs ha[d] not demonstrated that any particular voter . . . cannot get the necessary ID or vote by absentee ballot under SB14.”
Texas says the Court should “correct the Fifth Circuit’s misguided ruling that the law violates Section 2 of the Voting Rights Act” and review the discriminatory-purpose claim “now to reject the grave charge that the Texas Legislature acted with a racially invidious purpose,” as even with “unprecedented access” to internal legislative materials, plaintiffs couldn’t produce any evidence of intentional discrimination.
Plaintiffs do not dispute that they obtained sweeping discovery of internal legislative materials—thousands of pages of internal legislative documents and hours of legislator depositions. Pet. 33.3 That treasure trove of evidence contained no proof of discriminatory purpose. Pet. 32. It established that voter-ID bills in Texas were blocked by Democratic legislators in three straight legislative sessions between 2005 and 2009, even with significant public support for voter-ID laws . . .
After Republicans won a supermajority of the Texas Legislature in 2010, however, they were able to pass SB14 to deter voter fraud, safeguard voter confidence, and honor the will of the majority of Texans… given that this sweeping discovery did occur here, plaintiffs should be held to what the internal legislative materials proved: that the Texas Legislature enacted SB14 for the valid reasons of deterring voter fraud and safeguarding voter confidence. Pet. 32. This exceptional scenario warrants the Court’s review before proceedings continue in the district court on the wholly unsubstantiated charge that the Texas Legislature acted with a racially discriminatory purpose in passing SB14.
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.
Democrats denied: Even Trump critic Justice Ruth Bader Ginsberg could see that the injunction Ohio Democrats sought against the Trump campaign and his Republican supporters was unnecessary theatrics. “Ohio law proscribes voter intimidation.”
Just more Democrat lawfare to smear Republicans as voter intimidators and intimidate Republicans away from serving as lawful poll watchers.
Coalitions of ten states and 32 members of Congress have filed amicus briefs in the U. S. Supreme Court supporting Texas’ voter ID law:
On September 23, Attorney General Paxton filed a petition for a writ of certiorari in the Supreme Court to reinstate the voter ID law. The petition does not affect the upcoming November 8 elections, for which an interim remedy has been ordered by the courts.
“Our democracy does not work unless voters have confidence that election results are not skewed by fraud,” Attorney General Paxton said. “These amici speak to the nationwide problem states face when trying to preserve the integrity of their elections. A total of 34 states request that voters show some form of identification at the polls. Experience has shown that these protections work.”
The states’ brief was filed by Indiana and joined by Alabama, Arkansas, Kansas, Louisiana, Michigan, Oklahoma, South Carolina, Utah, and West Virginia.
States may, but are not required to, draw legislative districts based on total population
Justice Ginsburg: “We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population…
“Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”
Justice Thomas: “I agree with the majority that our precedents do not require a State to equalize the total number of voters in each district. States may opt to equalize total population… In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone—not to this Court.”
Wisconsin makes its case for voter ID:
Wisconsin’s voter ID law is an “eminently reasonable” regulation that the U.S. Supreme Court should stop blocking, the state says in its latest legal brief…
“In Wisconsin, as elsewhere, the overwhelming majority of voters already have qualifying ID… Voter ID protects against fraud and bolsters voter confidence in the election process…”
The state also implemented policies to help voters get identifying documents, according to the brief. “These so-called ‘burdens’ drove the district court’s decision, but the facts have changed.”
More than three and a half years after Wisconsin passed its voter ID law, the anti-ID crowd led by the ACLU is still fighting it:
“Opponents of Wisconsin’s requirement that voters show photo ID asked the U.S. Supreme Court Wednesday to hear their case and strike down the law. In September, the U.S. 7th Circuit Court of Appeals in Chicago upheld the voter ID law. But the measure was put on hold the following month by a divided Supreme Court out of concerns that there was not enough time to implement it before the November elections…
“The Wisconsin Supreme Court upheld the voter ID law this summer in the two state cases…”
Joining the ACLU in the petition are the League of United Latin American Citizens and the Advancement Project.