March 22, 2018

Gerrymandering: High court has a chance to fix political mapping

04 October 2017, 03:57 | Christie Tate

Manuel Balce Ceneta AP

Eric Silberman from Silver Spring Md. from left,Charlie Cooper from Baltimore Md. and Clay Wilson from Alexandria Va. join others in a rally for a fair election outside the U.S. Supreme Court in Washington Tuesday Oct. 3 2017. The Supreme Court

A month later, the court announced it would hear the case.

During oral arguments, some justices were concerned that if they rule for this one, political map drawing could fall onto the courts, nationwide. A federal appellate court ruling said a Republican-drawn map in Texas discriminated against minority voters, but the Supreme Court declined to force the state to redraw its districts before the upcoming 2018 elections. The argument was the first of the Court's 2017-2018 term.

"Well, it's a little hard to say at this point because, you know, it really just hasn't been fully explored", Murphy replied. The case, Vieth v. Jubelirer, brought into question a map that put Republicans at an advantage when electing congressional delegates in Pennsylvania.

He pressed the state's lawyers about whether it would be unconstitutional for the state to simply declare that it was going to favor one party over another. Courts have struck down districts as racially biased for decades, and other partisan districting lawsuits are moving through the courts in Maryland and North Carolina. Kennedy appeared open to First Amendment arguments related to the harm to voters distributed throughout districts based on political views.

The US Supreme Court began its new session looking at a full slate of controversial cases, including freedom of religion and free expression, privacy in the age of the digital footprint, and partisan gerrymandering.

U.S. Supreme Court Justice Neil Gorsuch, the most recent appointee, could be the decider on some consequential cases before the court during the current session. "We'll have to decide in every case whether the Democrats win or the Republicans win", Roberts said.

After winning control of the state legislature in 2010, Wisconsin Republicans redrew the maps for the state assembly to their considerable benefit. The most extreme manipulations of the map are seen in states such as Pennsylvania, North Carolina, and MI, where single-party control of the redistricting process has allowed the entrench an advantage. He wrote a significant separate concurring opinion in a 2004 redistricting case, and again in 2006, making clear that he does believe some redistricting may violate the Constitution, but that no one has yet crafted a workable standard for courts to apply.

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The nine justices heard an hour of arguments in the major voting rights case out of Wisconsin involving the practice known as partisan gerrymandering.

At issue is whether employers can enforce promises they extract from workers to pursue grievances as individual arbitration cases, rather than as group lawsuits in court. How do you tell if a map is gerrymandered so much that it's unconstitutional? And all of this, they say, amounts to an unconstitutional partisan gerrymander.

The plaintiffs' attorney, Paul Smith, urged the justices to act. Wisconsin claims the challengers in this case may be able to contest the specific map of the district in which they live, but can not challenge the entirety of the statewide map, because they can not allege an injury in a district where they do not reside.

Liberal Justice Stephen Breyer offered his own test for uncovering extreme partisan maps, which included asking whether a single party had control of the redistricting process, whether the maps would always favour that party, and whether the plan was an "extreme outlier". In spite of the fact that Florida is a "purple state" - with narrow advantages in both registered party affiliation and presidential outcomes in recent elections - U.S. House races do not reflect that competitiveness.

Though it is up in the air how deeply the Court will cut into the practice of partisan gerrymandering, a smart gambler would bet on Wisconsin's maps going down. That court found the shape of the districts could not be explained by nonpartisan reasons and that the advantage given to Republicans would be "enduring" through the decade even if Democrats outperformed Republicans at the polls. "It's easy enough when politicians draw maps to accuse them of being political", he said.

While one can not predict the outcome or its timing with any certainty, a decision is expected in early 2018.

Throughout the session, the justices and lawyers alike appeared to cast their questions and remarks with the hope of attracting Kennedy.

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