All pain, whose gain? The surprising implications of a new legal theory for redistricting
(cross-posted with my new Substack) Lots of pixels have been spilled on a legal theory once considered fringe, the Independent State Legislatu...
Kicking the can down the road
From the opinion (click image to get whole decision):The Supreme Court has opinions on Gill v. Whitford and Benisek v. Lamone. First, the good news: the Court likes our math! The bad news: they think it answered a First Amendment claim, and they decided this was a Fourteenth Amendment case.
Major points, in short:
- They are sending Gill back to Wisconsin for a do-over on grounds that there needs to be a plaintiff in every district. The Court focused on vote dilution, which they say is a Fourteenth Amendment claim. They scold the plaintiffs for not spending much time on the First Amendment claim. Not a win or a loss, but a punt. Read more at SCOTUSblog.
- In the Court’s view, this claim has to be decided on a district-by-district basis. They say that alternative maps demonstrating individual-voter harms could help. This is a loss for those of us who think that statewide measures were the way to prove a representational harm.
- Kagan has a 4-vote concurrence that points a possible way forward, based on First Amendment principles. It leaves open the possibility of a statewide harm. Noah Feldman analyzes. Kennedy didn’t sign that opinion, either because he didn’t agree or because he’s keeping his powder dry for now.
- Benisek, the Maryland decision, also came out today. That’s less interesting – a loss for reformers but basically a wait-and-see ruling, on the basis that Gill is a punt. Not much more to be said for now.
- North Carolina (Rucho v. Common Cause) may be argued next fall. It presents different theories. It’s actually a better-done decision, and would make better law than what was presented in Gill.
The next front is state-by-state reform. In places like Michigan and Virginia, state-specific voter initiatives and laws can do what the Supreme Court didn’t do today. So our plans at the Princeton Gerrymandering Project will move ahead!
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From my reading, I think Kagan is telling them how to get Kennedy’s vote in the next go-around: deliberately cracking any group is a First Amendment violation, lead with that argument.
That would be my hope too…see Noah Feldman’s take. But Kennedy didn’t sign that, which really makes me wonder whether the plaintiffs should do exactly as the main opinion says, or try for Kagan’s suggestion.
I like the Citizens United reference, especially in this context since the court seems to think corporations have rights of association that they are denying political parties here.
Looking at how they quoted you, I have an additional thought. You have heard me moan about city dems being cracked to help the dem party but hurt the city dems. That quote makes me think Kennedy would like to rule on the cracking of any identified group and not to restrict things to just political parties. Be it race, geography, party or what-not, legislatures should not be allowed to go out of their way to crack a block of voters on 1st amendment grounds.
Perhaps Kennedy does not like that the math so far is tailored to party politics. Maybe there is a more general way to show that some district lines were engineered to crack a group.
That could be the case. For example, a district-by-district approach allows the possibility of limiting a bipartisan gerrymander, in which neither side gains a numerical benefit but all legislators are made safe.
And yes, one could imagine other categories besides party and race.
Indeed – bipartisan gerrymanders are just fine under many of the mathematical tests proposed to the court. But they still serve to deny individual voters a fair choice, even though they are fair to political parties. SCOTUS pretty clearly saying it doesn’t like that.