Leading Off
● Wisconsin: The United States Supreme Court heard oral arguments Tuesday in a landmark lawsuit that could place limits on the ability of lawmakers to draw election districts to favor their own party, a case we’ve written about in detail in the past. Justice Anthony Kennedy has long been expected to be the swing vote in this case, called Gill v. Whitford. Following his questions during these arguments, many analysts were surprised to find themselves concluding that he sounded inclined to clamp down on partisan gerrymandering.
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Most notably, Kennedy repeatedly grilled the lawyers for Wisconsin's Republican legislators, who are defending the state’s gerrymander, while he posed no questions to the attorneys representing the Democratic plaintiffs seeking to invalidate the GOP’s map for the state Assembly, which is the focal point of the case. Academic research on oral arguments at the Supreme Court has long supported the notion that the side facing significantly more questions is considerably more likely to lose, which augurs well for the plaintiffs. However, that alone is no guarantee.
Nevertheless, Kennedy's questions and remarks strongly hinted that he might rely on the First Amendment to invalidate at least some level of extreme partisan gerrymandering for violating voters' right to freely associate with the political party of their choosing. In a 2004 case on the same topic called Vieth v. Jubelirer where Kennedy was also the pivotal vote, he refused to strike down the map in question for lack of a manageable standard for determining how much gerrymandering is too much. Kennedy did not raise that concern in his questions in the Whitford arguments.
Many analysts have interpreted Kennedy's Vieth opinion as an invitation to challengers to come up with that missing standard. In striking down the Assembly map, the lower court in Whitford developed a three-part test (outlined here) that rested in part on the First Amendment, an argument the plaintiffs have carried forward to the Supreme Court in the hopes that it might appeal to Kennedy.
The plaintiffs have also relied on a statistical test called the efficiency gap (which we explained here), which doesn’t touch on the First Amendment but instead focuses on equal protection claims under the Fourteenth Amendment. Some observers, such as redistricting scholar Michael McDonald, believe Kennedy is inclined to disregard the efficiency gap entirely, and indeed, the lower court ruling striking down the Assembly map, which Republicans are appealing here, did not rely on the efficiency gap in the first instance.
McDonald, who is aiding plaintiffs in a separate partisan gerrymandering lawsuit in Maryland that strictly relies on the First Amendment (and hasn't yet reached the Supreme Court), argues it's possible that the Supreme Court could wind up sending the Wisconsin case back to the lower court for re-evaluation while allowing the Maryland challenge to proceed if Kennedy likes its framework better.
Kennedy is the focal point in this potentially seminal case because the other eight justices’ positions are all but certain. The four liberal justices made it plain that they’re ready to set limits on partisan gerrymandering, while the four ultra-conservatives made it clear they would validate the practice. Chief Justice John Roberts did his best impression of an anti-intellectual when he called the plaintiffs' arguments "sociological gobbledygook" and demonstrated a willful disregard for the whole field of social science. Newly appointed Justice Neil Gorsuch was even more ridiculous: He compared efforts to police gerrymandering to his "steak rub," suggesting that plaintiffs were proposing an unreasonable sort of secret sauce as their test for excessive gerrymandering.
Gorsuch's stolen Supreme Court seat is the reason Kennedy is the swing justice in this case rather than a more liberal justice, who would have been very likely to invalidate this map and possibly produce a more comprehensive standard than what might pass muster with Kennedy. Nevertheless, while oral arguments don't automatically signal the outcome of a case, Kennedy's questions provide legitimate reason to be optimistic that he might finally act to impose limits on at least the most extreme cases of partisan election-rigging in the redistricting process. We'll just have to wait until springtime to find out.
Redistricting
● California: A new federal lawsuit by a notorious anti-voting rights crusader seeks to challenge the constitutionality of California's state-level Voting Rights Act. Ed Blum is the force behind this lawsuit, and he was the key instigator of the lawsuit that led to the Supreme Court's infamous 2013 decision striking down the heart of the heart of the federal Voting Rights Act. Blum has spent decades pursuing similar challenges to voting and civil rights laws, with some major successes and a few failures. This latest lawsuit seeks to invalidate California's 2002 law because it goes beyond what the federal version requires when lawmakers consider race in redistricting.
What remains of the federal VRA requires jurisdictions to draw districts so that members of minority groups can elect their chosen candidates in instances where at least three conditions are met: (1) there’s a compact minority population; (2) voting is racially polarized, with whites favoring one set of candidates and minority voters another set; (3) the white majority, voting as a bloc, would otherwise deny the minority the ability to elect their preferred candidates. Importantly, plaintiffs in VRA lawsuits don't have to prove mapmakers acted with discriminatory intent, just that they produced a discriminatory effect. The California version lowers the threshold even further.
In particular, California's law has forced a wave of municipalities to switch from holding at-large elections for city government to instead choose city councilors by districts, with the intention of allowing communities of color to elect more candidates who aren’t white. Although these redraws have achieved only modest success so far, they are nonetheless an obvious target for the ire of voting rights opponents like Blum.
The conservative majority on the Supreme Court has already demonstrated its willingness to invalidate landmark voting rights laws. Should this latest case make its way to the high court, Blum may yet again win a sweeping victory that limits the states' ability to advance the voting rights of voters of color beyond what federal law requires. This lawsuit could also very well be a prelude to an attempt by Blum and others to eliminate even this remaining portion of the federal VRA in the future.
● Georgia: Georgia's fully Republican state government quietly redrew 17 of the state House's 160 districts in a mid-decade gerrymander in 2015 to shore up their two-thirds supermajority. Now, the National Democratic Redistricting Committee under the leadership of former Attorney General Eric Holder has filed a federal lawsuit contending that some of these districts violated the rights of black voters under the Voting Rights Act and 14th Amendment. This marks the second ongoing lawsuit against parts of this map, after the state NAACP and Lawyers' Committee for Civil Rights Under the Law initiated their own lawsuit back in April.
Legal challenges alleging that mapmakers improperly used race when drawing districts have met with mixed-to-positive success in recent years. Although the Supreme Court dealt a setback to Latino voting rights in a recent decision blocking a redraw of districts in Texas, it has been more willing to allow challenges to districts in several other Southern states that diluted black voting strength. However, even if the plaintiffs prevail, Republican legislators will almost certainly still be the ones who get to draw new lines, leaving in doubt just how big of an impact a plaintiff victory would have on actual election outcomes.
● Texas: Back in January, a federal district court ruled that Houston's largest suburb, Pasadena, had intentionally discriminated against Latino voters when it redrew its city council districts in 2013. Now, the city of 150,000 has reached a $1 million settlement agreement in which it will drop its appeal of the ruling, which will force Pasadena to "preclear" any proposed voting changes with the U.S. Justice Department until 2023. That end date is key because a Democratic presidential victory in 2020 would enable the Justice Department to block discriminatory voting maps during next decade's round of redistricting, if Pasadena lawmakers still haven’t learned their lesson by then.
This ruling more importantly has national implications for the future of voting rights challenges. It marks the first time since the Supreme Court eviscerated mandatory preclearance for jurisdictions with a history of discrimination when it gutted the Voting Rights Act in 2013 that a court has used the still-valid "bail-in" provision of the law to place a locality back under DOJ supervision. Republican city leadership could have tried to appeal this ruling all the way to the Supreme Court in hopes of challenging that VRA provision, too, but for now it remains in place as a threat against other jurisdictions that pass new discriminatory voting laws.
Judicial Elections
● North Carolina: Late on Thursday, Republicans used their state House supermajority to pass a bill that would gerrymander election districts both for prosecutors and for judges who sit on the state’s superior and district courts, which we previously explained in greater detail. However, the similarly GOP-dominated state Senate won't take up this latest proposed power grab until January. Judges and prosecutors have widely condemned the bill, but Republicans easily have the power to override Democratic Gov. Roy Cooper's certain veto if the Senate approves the proposal. And thanks to district lines that would effectively limit the clout of black voters, these maps could face subsequent lawsuits over racial gerrymandering.
Not only did Republicans advance this ploy to rig the state’s judicial maps, they also tampered with the election calendar itself by voting to outright eliminate primaries in judicial races—for the 2018 cycle only. This provision would instead lead to chaotic general elections in which all candidates would run together on a single ballot regardless of party, with the highest vote-getter winning. Unlike the judicial and prosecutorial gerrymanders, this bill has already passed both chambers, and Republicans could soon override an expected veto from Cooper.
Such a crowded ballot would make a further mockery of democracy and practically guarantee that incumbents would get re-elected if they face multiple challengers from the opposing party who split the vote, given the advantages that come with name recognition. With Republicans defending the only state Supreme Court seat on the ballot next year and two out of three Court of Appeals seats, such an incumbency boost naturally plays to the GOP's advantage.
Of course, doing away with judicial primaries in 2018 could be a prelude to further changes to how judges are chosen. Indeed, Republicans have floated the idea of using the legislative supermajorities they owe to unconstitutional gerrymanders to refer a state constitutional amendment to next May's primary ballot that would institute some form of "merit-based" selection starting next year. Such an amendment would replace the current system, in which judges are elected in partisan contests.
Judicial elections are terrible for democracy because they inject politics into what should be an entirely apolitical process, and many states have some form of merit-based judicial selection, so this might sound like an appealing reform. But you can never, ever trust North Carolina Republicans. They’ve already gone to democracy-bending extremes to try to elect more conservative judges, so any “reform” they propose must be viewed with the harshest skepticism, since it’s very likely to be a Trojan Horse painted with a thin veneer of nonpartisanship.
Felony Disenfranchisement
● Alabama: Alabama's Republican-dominated state government passed a law earlier in 2017 that reformed its felony disenfranchisement regime to limit the number of felonies that cost Alabamians their right to vote. Although some hailed it as a major step forward, many voting rights advocates had rightly criticized this effort for failing to eliminate a requirement that the disenfranchised repay all court fines, fees, and restitution to victims following the completion of their sentences. In other words, this reform still leaves in place what is effectively a poll tax despite the 24th Amendment's ban on such laws.
As a recent AL.com article reported, Alabama is one of nine states that requires the disenfranchised to repay all such fines before regaining their right to vote. Even those whose past crimes no longer would have disenfranchised them if committed today still have to pay their court-related debts to regain voting rights. Such outstanding debts are widespread among the disenfranchised, and an academic study published in June concluded that most of those with past felony convictions who had served their time still had outstanding debts that will block them from voting. That study applied to citizens of all races, but this penalty disproportionately affects African-Americans.
Indeed, the Sentencing Project's review of felony disenfranchisement laws across the country found that in 2016—before Alabama's reforms became law—the state disenfranchised roughly 15 percent of black adults due to past convictions but only 5 percent of those who weren't black. Such a stark discrepancy is a legacy of Jim Crow, when these laws were intentionally first implemented to prevent black voters (and many poor whites) from casting a ballot. With the impact of debt repayment disproportionately affecting black voters, the ACLU and others have argued that it violates the Constitution, which could could potentially signal future litigation.
● Mississippi: If Alabama's felony disenfranchisement regime is bad, Mississippi's is even worse. The state effectively bars almost everyone convicted of certain felonies from ever voting again by literally requiring a supermajority vote in the state legislature specifically to restore a particular individual’s voting rights. A new federal voting rights lawsuit seeks to change that by arguing that this law violates the Constitution by intentionally discriminating against African Americans.
Mississippi's list of crimes that result in disenfranchisement is especially draconian: It even includes writing a bad check for just $100. Indeed, a plaintiff in the suit is former Columbus City Councilman Kamal Karriem, who was convicted of embezzlement 12 years ago for stealing a city cell phone and now can’t vote again even after serving his sentence.
This lawsuit may face an uphill challenge in federal court. Lower courts in recent years have agreed that certain newer voting restrictions were intentionally designed to discriminate against black voters, rendering them unconstitutional. And without a doubt, Jim Crow-era laws like Mississippi's original felony disenfranchisement were intentionally racist. However, conservative-dominated appellate courts like the Fifth Circuit, which covers Mississippi, have frequently overturned those rulings. The plaintiffs may have difficulty proving that this racist intent remains, thanks to subsequent revisions in the mid-20th Century.
Correction: This piece cited statistics on felony disenfranchisement in Mississippi from the Sentencing Project that have since been retracted. We have removed references to that data.
