Kennedy’s Retirement Could Threaten Efforts to End Partisan Gerrymandering
WASHINGTON &mdash For 14 years, as partisan gerrymanders across the country grew more intense, Justice Anthony M. Kennedy came to symbolize hopes that the Supreme Court would at some point rein them in.
His retirement this week did not merely dampen these hopes. Authorities stated it also presented a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political signifies.
Justice Kennedy was extensively seen as the swing vote on gerrymandering in a court divided amongst liberals, who see the practice as unconstitutional, and conservatives, who regard it as a political dilemma, not a legal 1. Indeed, he single-handedly preserved it as a judicial query, in a 2004 case involving Pennsylvania&rsquos Legislature, when he declined to join four other justices who declared that it is not possible to establish when a political map becomes unacceptably partisan.
&ldquoThat no such common has emerged in this case,&rdquo he wrote then, &ldquoshould not be taken to prove that none will emerge in the future.&rdquo
Justice Kennedy had 3 opportunities in the court&rsquos final term to join liberals in setting such a standard &mdash in cases involving Maryland, North Carolina and Wisconsin &mdash but passed on every single. With his departure, lawyers and legal scholars say, Chief Justice John Roberts becomes the most most likely justice to cast a fifth vote against partisan gerrymanders.
But that likelihood, some stated, is quite small. In hearing gerrymander challenges throughout the last term, Justice Roberts worried aloud about enmeshing the court in political matters.
&ldquoThere&rsquos a likelihood. It&rsquos not zero,&rdquo mentioned Nicholas Stephanopoulos, a University of Chicago law professor who has helped lead a lawsuit challenging the makeup of the Wisconsin State Assembly. &ldquoBut I believe our odds plummeted as a result of Kennedy&rsquos retirement.&rdquo
Some other people were far more sanguine, noting that Justice Roberts left the door open to other challenges in a recent opinion that returned the Wisconsin case to a reduce court on technical grounds. The court generally dismisses cases with such technical defects, Justice Roberts wrote, but &ldquothis is not the usual case.&rdquo
&ldquoHe&rsquos not going to be taken down this road unless a case is completely and appropriately presented,&rdquo stated Edward B. Foley, an election-law scholar at Ohio State University&rsquos Moritz College of Law. &ldquoBut it is extremely substantial that he did not foreclose the road at all.&rdquo
Voting-rights advocates and Democrats, who have been disadvantaged the most by gerrymanders in recent years, say they will continue the fight by other indicates. The National Democratic Redistricting Committee, led by former President Barack Obama and his lawyer basic, Eric H. Holder Jr., has targeted state-level political offices in a dozen states this year, aiming to enhance Democratic control of statehouses just before the next round of redistricting in 2021. The group has also joined lawsuits claiming racial gerrymanders of House districts in Alabama, Georgia and Louisiana, and is mounting grass-roots efforts to enact electoral reforms.
The group and its affiliates have raised $29 million because its commence in January 2017. &ldquoThis is losing a battle. It&rsquos not losing the war,&rdquo the group&rsquos executive director, Kelly Ward, said. &ldquoThere are a lot of fronts in this war, and we intend to fight on all of them.&rdquo
Yet one particular of the most promising anti-gerrymander efforts may also be among the most imperiled. Ballot initiatives to decrease or get rid of political handle more than redistricting will come prior to voters in at least four states in November, and possibly as several as six. Six other states currently have independent redistricting bodies citizen assistance for new commissions seems in some states to be strong.
But the justices have been divided on whether or not such measures are constitutional. Here too, Justice Kennedy&rsquos retirement could prove to be pivotal.
In 2015, the Supreme Court rejected a claim by Arizona&rsquos Republican-led Legislature that the Constitution gave it sole authority more than redistricting, and that a ballot initiative that shifted the activity to a nonpartisan citizens commission was illegal. Justice Kennedy joined the court&rsquos four liberals in the five-4 ruling. Chief Justice Roberts wrote the dissent for the court&rsquos conservative wing.
&ldquoThat case genuinely got Justice Roberts exercised,&rdquo stated Richard L. Hasen, a law professor and election-law specialist at the University of California-Irvine. &ldquoIt was one of the far more forceful dissents he has written.&rdquo In a court where difficult-line conservatives are dominant, he and other individuals stated, the constitutionality of citizen redistricting commissions may effectively get a second and less favorable appear.
The next legal challenge to partisan gerrymanders most likely will come next year from North Carolina, exactly where a 3-judge panel ruled in January that the state&rsquos 13 House districts had been an unconstitutional partisan gerrymander
For voting-rights advocates, there is no better case to take to the Supreme Court: North Carolina&rsquos Republican-dominated legislature boasted openly that it had drawn the districts to accomplish the maximum partisan advantage more than Democrats. The plaintiffs&rsquo case has none of the technical troubles that hamstrung the Wisconsin and Maryland challenges this year. And its legal theory &mdash that the Republicans violated Democrats&rsquo Very first Amendment correct to freedom of association by gutting their energy at the ballot box &mdash is far more simple than arguments in other challenges.
How the court decides the North Carolina lawsuit could determine no matter whether elections for decades to come are reasonably fair fights, or waged on maps that past justices have referred to as an affront to democracy.
&ldquoNorth Carolina is the most brazen of all the gerrymanders,&rdquo Professor Hasen said. &ldquoIf that goes, then anything goes.&rdquo
Published at Sat, 30 Jun 2018 09:00:04 +0000