Mar 31 2018
On the right, Rep. Ryan Costello (R-Penn.) announced this week that he would not run for reelection, a decision that has been widely attributed to the fact that his district-one of the most highly gerrymandered in the state, until it was recently redrawn by the Pennsylvania Supreme Court-now tilts towards Democrats.
Grappling with its second partisan gerrymandering case of the term, the Supreme Court appeared highly conflicted Wednesday on whether Maryland violated the First Amendment rights of Republicans by shifting the political makeup of their congressional district.
In their court filing, the Democrats say the three-judge panel didn't have grounds to decide First Amendment partisan gerrymandering claims and that the panel correctly acted to deny the injunction demanded by the Republicans.
At oral argument, almost all the justices asked questions suggesting they didn't think they should even decide the case because there isn't enough time for new maps to be drawn in Maryland for the 2018 election. He told Kimberly that elections in the challenged district had been held in 2012, 2014 and 2016. "It's deliberately making it more hard for particular citizens to achieve electoral success because their views are disapproved by those in power, in this case in Annapolis". A new map was created, passed both the Maryland House and Senate, and was signed by O'Malley.
To win a majority in the U.S. House of Representatives, Democrats would need a tremendous electoral wave not seen in more than 40 years to overcome Republican advantages from gerrymandered districts in key states, according to an analysis from the Brennan Center for Justice. It's simply a reflection of who was in power in states that let legislatures draw the lines after the 2010 census. Republicans argue the partisan redistricting caused irreparable damage to voters in the new district.
The other challenges to partisan gerrymanders that are now before the court hung heavily over the arguments Wednesday, and Justice Stephen Breyer suggested the court might be best off rehearing the cases together so the justices could compare and contrast the different standards.
Chief Justice John Roberts, however, anxious about the courts getting involved in the issue expressing some concern that it could make them look political.
Justice Ruth Bader Ginsburg, the justice most likely to pay attention to procedural issues, kicked off the questioning.
The political explanation was spurred by a comment from Chief Justice John Roberts during the Wisconsin arguments. Maryland's solicitor general, Steven Sullivan, who is defending the map, said that would be illegal, to which Kennedy replied, "So if you hide the evidence of what you're doing, then you're going to prevail?" None of the other justices jumped at that suggestion. As I write in this month's print edition of Reason, it's probably not possible to fully remove partisan influence from congressional map-making, but mapping technology and district-drawing algorithms can help limit some of the worst abuses on both sides. "It was judged competitive". No one less significant than former President Barack Obama has blamed Democratic losses during his admininstration on "sharply gerrymandered districts that are very safely Republican".
"The independent vote is critical because, in the first election, the Democrat won more of the independent vote than the Republican", Sullivan said. That said, drawing new lines for one district, would, of necessity, have ripple effects, changing the lines in others. "That happened because of the views of those voters and the strength of that candidate". Justice Neil Gorsuch asked. There may well be five justices on the Supreme Court who agree with him in principle, but today's oral argument once again demonstrated why the issue of partisan gerrymandering has vexed the justices for so long. "But if I understand it, I really don't see how any legislature will ever be able to redistrict".
Sullivan responded that the historic "max-black" districts were "drawn from a history of exclusion of African Americans from our political process, something that Republicans can hardly claim", because their party now controls both the federal and state governments. The Supreme Court took the appeal to consider four questions. In January, the Supreme Court temporarily blocked a redistricting order from a lower court in North Carolina.
"It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering", Breyer said of the Maryland map. It offered SCOTUS the chance to finally strike a blow against partisan gerrymandering (traditionally accepted by the courts, in contrast to racial gerrymandering, as a political question beyond the judiciary's reach), which it had come close to taking on in a 2004 decision wherein Justice Kennedy struggled with the issue but concluded no one had provided a clear and reliable standard for measuring excessive partisanship.
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