Amicus briefs filed in partisan gerrymandering case before SCOTUS

The most important Supreme Court case in the new term beginning the first Monday in October is Whitford v. Gill: Partisan gerrymandering case before SCOTUS; SCOTUS to review partisan gerrymandering in Whitford v. Gill (the appeal at SCOTUS is now captioned Gill v. Whitford).

The New York Times Magazine recently published a lengthy investigative report as a preview of the issues in what may become a landmark case, The New Front in the Gerrymandering Wars: Democracy vs. Math (snippet):

Political scientists and mathematicians have been trying ever since to create a standard that will satisfy Justice Kennedy — still the court’s crucial swing vote. They argue that with the help of experts, courts themselves can use the mapmakers’ advanced tools to assess and block gerrymandering.

Last November, relying on the same kind of analyses as the map drafters, the three-­judge panel in the second Wisconsin case struck down the state’s 2011 redistricting law. The Republicans appealed to the Supreme Court, which will hear the case on Oct. 3.

The outcome of the Supreme Court’s decision in Gill v. Whitford is likely to shape American politics for years and perhaps decades to come.

There has been some surprising new developments this week. The New York Times reports, Prominent Republicans Urge Supreme Court to End Gerrymandering:

Breaking ranks with many of their fellow Republicans, a group of prominent politicians filed briefs on Tuesday urging the Supreme Court to rule that extreme political gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution.

The briefs were signed by Republicans including Senator John McCain of Arizona; Gov. John R. Kasich of Ohio; Bob Dole, the former Republican Senate leader from Kansas and the party’s 1996 presidential nominee; the former senators John C. Danforth of Missouri, Richard G. Lugar of Indiana and Alan K. Simpson of Wyoming; and Arnold Schwarzenegger, a former governor of California.

“Partisan gerrymandering has become a tool for powerful interests to distort the democratic process,” reads a brief filed by Mr. McCain and Senator Sheldon Whitehouse, Democrat of Rhode Island.

The Supreme Court will hear arguments in the case, Gill v. Whitford, No. 16-1161, on Oct. 3.

The Republican National Committee, the National Republican Congressional Committee and the Republican State Leadership Committee all filed briefs on the other side. They urged the Supreme Court to reject a challenge to State Assembly districts in Wisconsin that, by some measures, gave Republicans outsize political power unjustified by the overall vote.

Charles Fried, a Harvard law professor who served as United States solicitor general under President Ronald Reagan, and who is among the lawyers representing Republican politicians urging the Supreme Court to reject extreme political gerrymanders, said it was important to take the long view and to act on principle.

“It’s not a partisan issue,” he said. “We are working for our republic, and not for Republicans.”

* * *

These days, both parties are using their power more aggressively than ever, according to a brief filed by 65 current and former state legislators, 26 of them Republicans.

“In recent years, the two major political parties, leveraging the technologies of the modern age, have intentionally and systematically excluded each other from state legislatures like never before,” the brief said. “Democrats rigged the maps in Illinois, Maryland and Rhode Island, while Republicans did so in Wisconsin, Michigan, Ohio, Pennsylvania and North Carolina.”

The Supreme Court, which has never struck down an election map as a political gerrymander, will consider a case challenging the voting districts for Wisconsin’s State Assembly drawn after Republicans gained complete control of the state government for the first time in more than 40 years.

Republican lawmakers drew maps that helped their party convert very close statewide vote totals into lopsided legislative majorities. In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats.

The phenomenon is commonplace, Mr. Schwarzenegger said.

“It’s a rigged system,” he said. “You have situations where you get 50 percent of the vote but only 35 percent of the seats. That is corrupt. That is incorrect. It’s unfair to the people.”

The plaintiffs challenging Wisconsin’s map are represented by the Campaign Legal Center. Its president, Trevor Potter, a former chairman of the Federal Election Commission, said he was “pleased, but not surprised, to see many of America’s most accomplished Republican leaders urging the Supreme Court to rein in excessive partisan gerrymandering.”

“They know that elected officials’ legitimacy comes from being freely chosen by voters, not through seizing power from voters to keep themselves in control,” added Mr. Potter, who was appointed to the commission in 1991 by President George Bush.

The challengers say they have identified a mathematical formula to help identify unconstitutional partisan gerrymanders. In a brief urging the Supreme Court to sustain Wisconsin’s maps, the Republican National Committee claimed that the formula was “a tool that advances the partisan interests of the Democratic Party.” But of course they did.

* * *

The brief from current and former House members noted that Mr. Reagan had referred to gerrymandering in 1987 as “a national scandal” and called for “an end to the anti-democratic and un-American practice of gerrymandering congressional districts.”

Alan Simpson said it was time for the Supreme Court to heed that call.

“This case is long overdue,” he said. “Quite literally, gerrymandering is killing our system. Most Americans think politicians are corrupt, and when they’re rigging maps to pick their own constituents, they’re giving them reason to believe it.”

The Washington Post further reports, Republicans split over gerrymandering case headed to Supreme Court:

A long list of prominent Republicans is urging the Supreme Court to find that extreme partisan gerrymandering is unconstitutional, saying the practice of drawing electoral lines to benefit one party or another is detrimental to democracy.

It puts those Republicans on opposing sides from groups such as the Republican National Committee and the party’s congressional campaign committee, which are supporting Wisconsin’s GOP-led legislature in a major high court case to be heard next month.

A lower court found lawmakers drew maps that so favored Republican candidates that they violated the constitutional right of equal protection.

Now, Republicans such as former California governor Arnold Schwarzenegger and the party’s former presidential nominee Robert Dole have signed onto friend-of-the-court briefs that say the Supreme Court should find — for the first time — that a redistricting plan is so politically biased it must be thrown out.

“Partisan gerrymanders frustrate majority rule by entrenching political parties in ways they do not earn on the merits,” says the brief signed by Schwarzenegger and other former elected Republican officials. “They turn republican government upside down, with politicians choosing their voters instead of voters electing their politicians.”

* * *

[C]hallengers of the Democrat-drawn congressional maps in Maryland filed an unusual motion with the Supreme Court last week, asking that their case be heard as well as the Wisconsin case, Gill v. Whitford.

A three-judge panel last month split 2 to 1 to allow Maryland to use its voting boundaries for the 2018 election and put the lawsuit on hold until after the Supreme Court rules in the Wisconsin case.

The challenge in Maryland centers on redrawing a congressional district anchored in Western Maryland in such a way that transferred Republican voters out and Democratic voters in, resulting in a victory by a Democrat over the incumbent Republican congressman.

The challengers’ petition to the Supreme Court says that considering their case along with the one from Wisconsin would provide a “broader spectrum of legal arguments and evidence with which to address the problem of partisan gerrymandering.”

Such last-minute petitions are rarely granted by the court.

All eyes will be focused on the U.S. Supreme Court on October 3 for the oral argument of Gill v. Whitford.

Comments are closed.