A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.
Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.
If partisan gerrymandering is a substantial evil worth fighting – and I believe it is – we should now get serious about finding that remedy through other means….
Alabama readers: I’ll be giving a 11:30 a.m. talk to the Federalist Society chapter in Montgomery this coming Thursday at the Capital City Club in Montgomery, discussing gerrymandering and the cases before the U.S. Supreme Court. Drop by and say hello!
This is only tangentially related to Overlawyered (unless you are a big fan of the posts on redistricting reform and the Supreme Court’s pending Lamone v. Benisek) but one of the projects I’m involved in as a civically active Marylander, the Emergency Commission on Sixth Congressional District Gerrymandering, sent a proposed new Sixth and Eighth District map to Governor Larry Hogan last week, which he promptly introduced as a bill in the legislative term that ends soon. And yesterday, again by a unanimous vote, we approved our final report to send to the governor.
You should also listen to former California Gov. Arnold Schwarzenegger on the subject:
Let’s pump up @GovLarryHogan’s #fairmaps bill, Maryland. Call your representative and tell them you’re sick and tired of gerrymandering and want them to support the bipartisan commission’s map: https://t.co/9eGqRImJox pic.twitter.com/ljA7tfDVTG
— Arnold (@Schwarzenegger) March 29, 2019
More coverage, mixing the Supreme Court case from last week with mentions of our remedial efforts: Samantha Hogan, Frederick News Post (with picture) and earlier, Bruce DePuyt and Robin Bravender, Maryland Matters (also with good pictures), Tamela Baker, Herald-Mail (Hagerstown), Jennifer Barrios, Washington Post, Kimberly Eiten/WJZ, Dominique Maria Bonessi, WAMU.
Also, Nina Totenberg’s approach to Schwarzenegger on the Supreme Court steps became a viral meme and I’m in it:
Walk up to everyone you want to interview the way Nina Totenberg walks up to the Terminator pic.twitter.com/iwruCvPxbg
— Mary E. Harris (@marysdesk) March 27, 2019
The Maryland gerrymander case, back for its third trip to the Supreme Court, was argued March 26. This Federalist Society animated video about the case has me as narrator. Jon Levitan at SCOTUSBlog rounds up commentary on the oral argument. The Brennan Center offers an annotated guide to the amicus briefs.
“Epic can of worms”: a North Carolina judge has ruled that because of racially gerrymandered districts the state’s lawmakers have no legitimate authority to propose amendments to the state’s constitution. The effect is potentially to nullify two amendments that the state’s voters approved in November, one on voter ID and one on capping state income taxes. [Alan Greenblatt, Governing]
But wait: wouldn’t declaring a legislature illegitimate mean nullifying a lot of legislative actions that are pleasing to progressives, such as funding and expanding the public sector in various ways? Conveniently, it seems Wake County Superior Court Judge G. Bryan Collins has not signaled any willingness to strike down decisions made by a simple legislative majority, which would therefore be regarded as legitimate and allowed to stand. Gerrymanders, of course, do have a direct influence on whether a legislature adopts measures subject to simple majority vote, even as they do not have a direct influence on whether voters approve or do not approve a constitutional amendment for which balloting is statewide.
It will be curious to see whether this opinion stands up on appeal, even at the North Carolina Supreme Court, which I understand has issued some strenuously progressive rulings in recent years.
H.R. 1, the political regulation omnibus bill, contains “provisions that unconstitutionally infringe the freedoms of speech and association,” and which “will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.” That’s not just my opinion; it’s the view of the American Civil Liberties Union, expressed in this March 1 letter (more). For example, the bill would apply speech-chilling new restrictions to issue ads that mention individual lawmakers.
The House of Representatives nonetheless voted on Friday along party lines to pass the bill, which was sponsored by Rep. John Sarbanes (D-MD). For now, it has no prospect of passage in the Senate.
The issues raised in the ACLU letter aside, H.R. 1 contains many other provisions that likely are unconstitutional, unwise, or both. On gerrymandering, for example, an issue on which the Constitution does grant Congress a power to prescribe standards which I’ve argued it should consider using more vigorously, the bill takes the heavy-handed approach of requiring all states to create a commission of a certain format. That would likely run into the Supreme Court’s doctrine against federal “commandeering” of state government resources.
More criticism: Brad Smith on the bill’s restrictions on discussion and coordination of expenditures on speech; Ilya Shapiro and Nathan Harvey (“If ever adopted, [HR1] would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances”); David A. French (“At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.”) And: Cato Daily Podcast with Caleb Brown and Luke Wachob.
I’ll be speaking to the Federalist Society chapter at Duke Law School in Durham on Monday at 12:30, on the subject of gerrymandering and redistricting reform, with Prof. Bob Joyce responding. Drop by and introduce yourself if you’re local!
At National Review, Lyman Stone challenges the currently popular idea that American electoral processes are in the grip of a crisis of democratic legitimacy. While there is real room for process improvement, as with the issue of gerrymandering, it is less clear that imperfections in our electoral system 1) have worsened a lot or 2) are especially different from than those found in other mature democratic systems. It is also far from clear that over the long run the imperfections systematically benefit one “side”: at the moment Republicans hold more seats than their share of votes would predict, but one needn’t go far back in time to find periods when Democrats held the same sort of edge.
Two areas where the U.S. is unusual: we have low voter turnout, well below that of most advanced countries, and each member of our House of Representatives represents a very large number of people.
This past weekend I joined West Coast-based libertarian radio host Bob Zadek for an hour-long show on redistricting reform. I discussed the same issue as it applies to my own state of Maryland in a podcast with the Frederick News Post’s Emma Kerr and Colin McGuire, as well as an interview with host Sheilah Kast at WYPR’s “On the Record”.
Separately from my Cato and Overlawyered work, I am honored that on Monday Gov. Larry Hogan appointed me to serve together with Judge Alex Williams as co-chairs of a new emergency commission given the task of redrawing the lines of Maryland’s Sixth Congressional District so as to comply with a federal court order. Coverage of that at WBAL, Maryland Reporter, Washington Post, Baltimore Sun and Capital Gazette, AP/ABC, Frederick News Post, Herald Mail (Hagerstown), WMAR, Maryland Matters, and many others. Maryland citizens are encouraged to apply to serve on the resulting commission; applications close December 10.
- Notwithstanding one-person-one-vote, some House districts do have unusually high or low populations. Main reasons: 1) Small states get rounded up or down; 2) demographics change in existing districts over 10-year Census cycle especially where new housing is being built [Hristina Byrnes, 24/7 Wall Street, I’m quoted]
- “‘Outrageously excessive’ requests for attorney fees can be altogether denied, 3rd Circuit says” [ABA Journal]
- Prenda copyright troll Paul Hansmeier, who also did mass ADA filings, pleads guilty to fraud and money laundering charges [Dan Browning, Minneapolis Star-Tribune via Mike Masnick, TechDirt]
- Thread: calm, factual discussion of Department of Justice brief on Title VII and gender identity [Popehat on Twitter]
- We’ve often discussed the high cost of the maritime-protectionist Jones Act, and now Cato has launched a Project on Jones Act Reform;
- “Landlord, a Fairfax, Va. mobile home park, imposes requirement that all adult tenants show proof of legal residence in the country; four Latino families (four men with legal status, four women who are illegal immigrants, and 10 U.S. citizen children) face fines, eviction. A violation of the Fair Housing Act? Could be, says the Fourth Circuit (over a dissent).” [IJ Short Circuit]