[EL] partisan gerrymandering

Thu Jun 27 12:17:10 PDT 2019

FWIW, I view the part that Mark points out here as one of the most damaging portions of today’s decision, with majority support behind what had been either dicta or the isolated statements of individual Justices.

As far as I’m aware, there are now two instances in which a government may constitutionally exercise state power in order to injure US citizens based on those citizens’ partisan beliefs - at least sometimes.  The first is in senior political governmental employment, which affects a few people in a few jobs.  The second is in redistricting, which affects all of us.

If that part of the decision is “conservative,” I don’t understand the label.

Even in the retaliatory arrest cases this Term, I don’t believe that the court said that a retaliatory arrest was constitutional.  It just said there’s no recourse if there’s also probable cause. Today’s decision goes farther.

One other thought: I’m not sure exactly how this affects Latinos v. Cox, but I don’t understand the logic in which there’s still a viable Larios claim.

--
Justin Levitt
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On Jun 27, 2019, at 10:47 AM, Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:

It seems to me that the Court recognized the constitutionality of at least some degree of political gerrymandering. This may not be a holding, but the Court does say that "a jurisdiction may engage in constitutional political gerrymandering."

From page 12 of the slip opinion:

"Partisan gerrymandering claims have proved far more
difficult to adjudicate. The basic reason is that, while it is
illegal for a jurisdiction to depart from the one-person,
one-vote rule, or to engage in racial discrimination in
districting, 'a jurisdiction may engage in constitutional
political gerrymandering.' Hunt v. Cromartie, 526 U. S.
541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968
(1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996) (Shaw II );
Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw I, 509
U. S., at 646). See also Gaffney v. Cummings, 412 U. S.
735, 753 (1973) (recognizing that '[p]olitics and political
considerations are inseparable from districting and
apportionment')."

Legislators must refuse to engage in actions that they, in their own judgment, believe would violate the Constitution, whether or not a court would or could make that determination. Their oath of office requires no less. So this recognition by the Court that at least some degree of political gerrymandering is constitutional is not determinative of whether a legislator should refuse on constitutional grounds to engage in it. The Court's statement does provide a basis for a legislator to conclude in good faith that he or she does not violate the oath of office by engaging in political gerrymandering.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Thu, Jun 27, 2019 at 9:56 AM Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:
Did the Court hold in Rucho that it's constitutional for officials to draw districts for partisan gain (as opposed to simply that it's nonjusticiable)?  I don't think so.  And I doubt even the Trump Administration would publicly assert hat partisan advantage is a factor the statute allows (or could constitutionally allow) Ross to consider--or that DOJ would argue that it is.  Naive?

On Thu, Jun 27, 2019 at 12:44 PM Josh Blackman <joshblackman at gmail.com<mailto:joshblackman at gmail.com>> wrote:
Rick,

Roberts's most important statement is the fact that Ross made up his mind at the outset is not dispositive. In other words, that fact does not "forever taint" the action. It could be cured by additional justifications. Perhaps, as you note, that additional justification could be for political gain. It would be a brazen argument, but could work.

I summarize the thought here:

https://twitter.com/JoshMBlackman/status/1144283664991301632
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On Thu, Jun 27, 2019 at 11:39 AM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
“How John Roberts Might Allow Trump to Resurrect the Census Question”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d105807&c=E,1,7ngpn3L78__tzLPLqg77H4IWPYHigEvUF4gRf5x7LT1XPEDIGMd2OixIZjmN2zEAR6Y-Y-cDcwoPPSLFVFpYY17Lpo7svkwFBIQHwphTZPur&typo=1>
Posted on June 27, 2019 9:37 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d105807&c=E,1,bnu6DRDQllafDy6F-wx57Zs9BnMY46Hp0iKNTqG54B2iRj7odjwVN0p-MQLmz_8Lj0Qoj63jvnPnZaUoCVdgN_znCv6dfQUx5d5gsFTR0GbuttyxJ5fYXg,,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,KXm8-V6lxtpTw3kbZOkEZO9e1L8qo_cnf4JZs3ygTQeXLSOZ7AY57VnX3ABO1QXr0af4fwKsY54nAUZKBte5sqg4efo3j4Wmc66hwfQdGn264A,,&typo=1>

I have posted this piece<https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html> at Slate. It begins:

Despite a favorable ruling for opponents of the census citizenship question on Thursday, the Supreme Court did not definitively decide to exclude citizenship question from the 2020 census. Indeed, I expect that the Trump administration’s Commerce Department and Department of Justice could well be back before the Supreme Court’s next term begins in October arguing for the question’s inclusion, and they could well win and include the question.

It concludes:

The majority opinion and the separate conservative opinions, however, have given the agency plenty of non-pretextual things to say about why it would want to include the citizenship question. Administrative law professor Jennifer Nou even ponders<https://twitter.com/Jennifer_Nou/status/1144259250899816448> that they could argue they were doing it for partisan reasons, following the decision in Thursday’s partisan gerrymandering case giving such conduct the green light.
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.

If the agency moves to include the question again, the case will be back before the Supreme Court. It would likely be joined by the other case coming out of the Fourth Circuit arguing that the inclusion of the question violated the Equal Protection Clause because it was based on a racially discriminatory purpose. The court did not address the equal protection holding Thursday, despite the outrageous urging<https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html> of the Solicitor General for the Court do to so without briefing. Assuming the Commerce Department moves forward with trying to include the question on the 2020 census, the Fourth Circuit could well keep this case alive to create a record of the racial motivations for inclusion of the original question.

On this question, I expect that any new agency decision to include the citizenship question would be found by the court’s conservatives to have cleansed the decision of any racial animus. (The court made just such a finding last year in a Voting Rights Act redistricting case from Texas, Abbott v. Perez<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f17pdf%2f17-586_o7kq.pdf&c=E,1,wRZc-yjdGnAvgjeNm05L2bcQoArb0KTZ37RBaMvld5lMYGxMTCgen0db0rMlGXqeiKXzrugSeI1LcGFSPyqBnJWX06B_O9Y7S6mh0vCcaw,,&typo=1>.)

So we may see a rare September argument where these issues will be back before the Supreme Court, and John Roberts, who gave the Republicans a green light to gerrymander to their hearts content in today’s Rucho<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2fopinions%2f18pdf%2f18-422_9ol1.pdf&c=E,1,HyVhQkT9mbnaqL_PblNSk7gd0genAIyWX-GUHsD6nnLlmIO8DbQKQcI7xvOyMMpZS328vUKrou0Gc0zt3B6yHskq3N6m8PV6y7JSR42CvzbY&typo=1> case, may give them yet another tool to solidify their grasp on power despite demographic forces moving against them.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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Marty Lederman
Georgetown University Law Center
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