There has been a lot happening in partisan gerrymandering lawsuits lately, and luckily Rick Hasen at Elction Law Blog has put together a summary of where these cases stand today that will save me a lot of time. The State of Play on Partisan Gerrymandering Cases at the Supreme Court:
Back in 2004 the Supreme Court in Vieth v. Jublelirer split 4-1-4 over what to do about claims that partisan gerrymandering violates the U.S. Constitution. Four Justices said it was non-justiciable, four Justices said it was justiciable and raised a variety of challenges, and Justice Kennedy, in the middle, agreed with the Court’s liberals that the cases were justiciable, but agreed with the Court’s conservatives that the proposed standards didn’t work. He essentially told everyone to keep working on the issue and come back, maybe looking at the First Amendment, maybe history, and maybe computers. The cases at or coming to the Court seek to satisfy Justice Kennedy in various ways.
Here’s the state of play; the Supreme Court heard argument in October in Gill v. Whitford involving a challenge to state legislative districts in Wisconsin. Gill raises a partisan gerrymandering challenge under the Equal Protection Clause, and the McGhee/Stephanopoulos “efficiency gap” figured in (but was not the entire basis) for the analysis. Last month, the Court somewhat surprisingly also agreed to hear full argument in Beniske v. Lamone, a case challenging a Maryland congressional district as a partisan gerrymander under the First Amendment. I explained in this LA Times piece why the Court might have agreed to full argument in Benisek v. Lamone. Argument in the Maryland case will be later in the Spring.
The Court as soon as this week could agree to hear a few challenges to Texas redistricting, including to state House districts and to congressional districts. [UPDATE: the Supreme Court announced this afternoon that it would take on the 2 Texas cases.] Although most of the issues in this case involve claims of Voting Rights Act violations and racial gerrymandering, one of the petitions raises a partisan gerrymandering claim from Texas. That part of the case could be held for Gilland Benisek, or set for argument. Indeed, it is possible this delays all of the claims.
In North Carolina, meanwhile, a three-judge court yesterday held North Carolina’s congressional redistricting plan, enacted after its earlier plan was found to be a racial gerrymander, was an unconstitutional partisan gerrrymander. The Court accepted claims under the Equal Protection Clause, the First Amendment, and the Elections Clause. And today, a three judge court rejected the Elections Clause claim to a Pennsylvania congressional redistricting plan. (It had earlier rejected the other theories too).
The three judge court in North Carolina put the drawing of new districts on the fast track. I expect the state legislature will seek a Supreme Court stay pending final resolution, and given the Court’s track record (as I explained in this Washington Post piece) the Court is likely to grant it.
Given the timing of briefing at the Supreme Court, petitions on the merits in North Carolina and Pennsylvania would reach the Court too late for it to order briefing (at least under the normal procedures) this term. The most likely scenario is that such petitions will be held for the other partisan gerrymandering cases decided this term, and then remanded for reconsideration to the lower courts in late June.
One further wrinkle in Pennsylvania: there’s a state Supreme Court case pending over whether Pennsylvania’s redistricting violates the state constitution. That would not end up at the Supreme Court and could moot the federal case.
And in North Carolina: we are expecting an order as to state legislative districts found to be racial gerrymanders in the next few weeks. Expect that too, to end up on a quick trip to SCOTUS, where the state will ask anything that happens not to affect 2018.
So the Supreme Court will rule in Gill v. Whitford and Benisek v. Lamone this term. The Court’s opinion may establish a set of standards for partisan gerrymandering cases, or maybe not, for which the other cases headed to the Supreme Court may be remanded to the trial courts for reconsideration consistent with the court’s opinion.
Of courrse, the court may only determine issues unique to Gill and Benisek, and thus accept the appeals from North Carolina, Pennsylvania and Texas, and schedule those cases for next term to decide separate issues unique to those cases.
In any case, whatever the Supreme Court rules in Gill and Benisek is likely to come too late in the year to be applicable to the 2018 midterm elections. The states will ask for a stay to have sufficient time to comply with the ruling, and the stay will be granted.
UPDATE: The Supreme Court heard oral argument in Husted v. A Philip Randolph Institute this week, a case which concerns an Ohio law which makes it relatively easy to purge voters from the voter rolls.
Adam Liptak of the New York Times reports, Supreme Court Weighs Purge of Ohio Voting Rolls;
In a spirited argument on Wednesday, the Supreme Court appeared deeply divided over whether Ohio may kick people off the voting rolls if they skip a few elections and fail to respond to a notice from state officials.
Justice Sonia Sotomayor said Ohio’s approach effectively disenfranchised minority and homeless voters in the state’s major cities and was part of a broader effort to suppress voting.
“All of these impediments result in large numbers of people not voting in certain parts of the state,” she said.
But Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state’s list of eligible voters.
“The reason they’re purging them,” Justice Kennedy said, “is they want to protect the voter rolls from people that have moved.”
Justice Breyer fleshed out the point. “Every year a certain number of people die, and every year a certain number move to California,” he said. “We don’t want them on the voter roll. That used to be a big problem, voting dead people.”
* * *
Federal laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.
A central question in the case was whether a failure to vote could be the reason to send out the notice.
Ohio is more aggressive than any other state in purging its voter rolls. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.
A few other states use similar approaches, but not one of them moves as fast. “Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”
At Wednesday’s argument, Eric E. Murphy, Ohio’s state solicitor, said about eight states send out notices based on the failure to vote.
Justice Ruth Bader Ginsburg said there was good reason to think that “Congress didn’t want failure to vote to be a trigger for this procedure.”
But Justice Samuel A. Alito Jr. said the laws appeared to permit Ohio to use its notification process.
“Why isn’t the best interpretation of this that one cannot be removed from the list solely because of failure to vote?” he asked. The failure to respond to the notice, he suggested, was an additional reason.
“Congress had struck a compromise,” Justice Alito said. “What we have before us is a question of statutory interpretation, not a question of what we think would be the ideal system for achieving the result of removing people who have moved from the voter lists.”
Paul M. Smith, a lawyer for the challengers, said there were far more reliable methods of figuring out whether people had moved, including consulting records kept by the post office and motor vehicle departments.
On the other hand, Mr. Smith said, “the failure to vote for two years tells you almost nothing about whether or not anybody has moved.”
He said more than half of Ohio voters sit out elections over a two-year period and 70 percent of people who receive notices from the state do not return them.
“The process is vastly overbroad in its design,” Mr. Smith said. “You’re just going to end up with a lot of false positives.”
Mr. Smith added that it is lawful for states to send nonforwardable notices based on the failure to vote, and take action based on the ones returned as undeliverable.
Chief Justice John G. Roberts Jr. seemed surprised by the concession. “So the triggering event can be the failure to vote?” he asked. “I would have thought that’s inconsistent with the rest of your argument.”
But the distinction between a failure to respond to a notice and one returned as undeliverable seemed to appeal to Justice Breyer.
Justices Clarence Thomas and Neil M. Gorsuch asked no questions.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruledin favor of Mr. Harmon in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.
Without that decision, “the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election,” Mr. Harmon’s lawyers at Demos and the American Civil Liberties Union wrote in a Supreme Court brief.
A Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.
“Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” the study found. “Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”
The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Mr. Harmon.
After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.
UPDATE: This is a big effin’ deal: a federal district court recently ended a consent decree in place since 1981 against the Republican National Committee restricting so-called “ballot security” measures which are aimed at suppressing minority voter turnout. Rick Hasen explains, Vote Suppressors Unleashed.