By February, clues were in plain sight that the Supreme Court was not inclined to hand down a “big” landmark decision this term on gerrymandering. That was confirmed yesterday when the Court got both cases off its plate without reaching the merits, instead disposing of them for now on issues of standing (Gill v. Whitford, Wisconsin) and timing (Benisek v. Lamone, Maryland). Strikingly, both decisions were unanimous as to result, a clue as to the carefully limited scope of what was decided, and both cases can continue in the courts below with their legal theories mostly intact. “The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t,” I write in a new Cato commentary on the decisions.
At Five Thirty-Eight, Galen Druke provides a helpful breakdown of the different ways the Supreme Court might resolve or fail to resolve the Wisconsin and Maryland partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone. Briefly, the Court could 1) find partisan gerrymandering unconstitutional, and accept the theory of either the Wisconsin or the Maryland case, which are quite different from each other; 2) find it unconstitutional and announce or at least gesture toward a standard other than those urged in the two cases; 3) duck the whole thing on grounds such as standing or mootness; 4) reject the Wisconsin and Maryland theories while leaving the door open (as in Vieth) for a future case to bring in the right theory; 5) reject the suits and all future claims of this sort as not justiciable, which would require Anthony Kennedy’s crossing to join the conservatives’ position in earlier cases; 6) kick the cases to next term, when they could be joined by a North Carolina case; or 7) splinter in some way that resolves the case without letting one of the above outcomes command five votes. A decision of some sort is expected by the end of the term June 25.
This week the Supreme Court heard oral argument (transcript) in Benisek v. Lamone, the challenge to Maryland’s gerrymandered Sixth District. I was there with some critics of the gerrymander in front of the Court steps and spoke to a number of reporters afterward [Danielle Gaines, Frederick News-Post; Bruce DePuyt, Maryland Matters] See also Eric Boehm, Reason. Earlier here. Background links on Maryland case: Cynthia Prairie, Maryland Reporter in January.
I’ll be testifying in Annapolis on behalf of comprehensive redistricting reform on Monday (Maryland House of Delegates) and Thursday (Senate) of this week. In the mean time, here are two new audio contributions, first (above) a Cato Daily Podcast in which I’m interviewed by Caleb Brown.
I’m also in the question period a bit more than two-thirds through this Federalist Society program featuring former Rep. Chris Shays (R-Ct.) and Weekly Standard senior writer Jay Cost.
On recent redistricting fireworks in Pennsylvania — which are being decided under that state’s constitution, and thus do not directly affect the federal constitutional issue or the situation in other states — see Nate Cohn, Matthew Bloch and Kevin Quealy, New York Times and Dave Wasserman, Cook Political Report. The Pennsylvania Supreme Court’s map scores high on a measure of partisan proportionality — that is, matching the number of seats won by a party to its share of overall vote. As Cohn et al. note, however, partisan proportionality in general “is not usually a goal when redistricting,” in part because it calls for conscious affirmative attention to partisan considerations as distinct from neutral principles. In this case it also comes as “something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map.”
Ballotpedia asked me to contribute to a mini-symposium on how the Supreme Court may deal with the partisan gerrymandering cases cases of Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland), and you can read the results here (see also my Cato write-up).
Separately, I’m scheduled to testify in Annapolis on state-level proposals for redistricting reform on Feb. 26 (House of Delegates) and March 1 (Senate). Come up and say hello afterward if you’re there.
Pittsburgh and Indiana readers! I will be giving talks about gerrymandering and redistricting reform this Thursday (Pittsburgh) and Mar. 20 (Bloomington, Ind.). Details of the lunchtime talks:
Feb. 15: Pitt Law School Federalist Society chapter, with Duquesne Law Prof. Will Huhn.
If you’re a longtime reader and would like to see if we could grab coffee, email editor at overlawyered dot com.
Relatedly, I’m pleased to report that my piece on politicians, voters, and gerrymandering is the lead essay in the latest Cato Policy Report, and that it’s now online.
- “The rate of litigation is simply so much greater in the U.S., it is understandable why [foreign firms] feel as though they have a target on their backs.” [Richard Levick, Forbes]
- Don’t forget: at noon Eastern tomorrow (Thursday) I’m hosting Lenore Skenazy (Free-Range Kids) and Dara Lind (Vox) at Cato to talk about problems with the sex offender registry. You can watch online here. Background here and here;
- Regulators don’t always enforce all the regulations on their books. Yes, and? [Aaron Nielson] And the Encyclopedia of Libertarianism, now free online, has an article on Regulation by Michael Munger;
- “Is your child texting about partisan gerrymandering?…” My bit of Twitter humor [Free State Notes]
- Lawyer seeks injunction against specific part of rapper’s masculine anatomy [Deborah Horne, KIRO]
- The next generation of libertarian thinkers, leaders, and advocates are part of the Cato Institute internship program [promotional video]
- Supreme Court takes Maryland gerrymander case to go with the Wisconsin one, Gill v. Whitford, on which it’s already heard oral argument [Benisek v. Lamone] I joined Andrew Langer on WBAL Baltimore’s C4 show to discuss the development [listen] More: Linda Greenhouse, NYT and generally;
- Self-recommending: Kevin Underhill at Lowering the Bar is out with his top posts of 2017 and they include “Guy Who Got a C on Constitutional-Amendment Paper Gets Constitution Amended,” “Judge Rejects Man’s Claim to Be ‘Some Sort of Agricultural Product‘,” and “It Is Not Illegal to Drive With an Axe Embedded in the Roof of Your Car”;
- Guess who’s supporting “CPSIA for cosmetics” bill, the same way the largest toymakers supported the original CPSIA fiasco? Right [@GabrielRossman on Twitter; earlier on “Personal Care Products Safety Act” and its predecessors]
- Good. Now eliminate it entirely. HUD suspends until 2020 Obama-era “Affirmatively Furthering Fair Housing” (AFFH) program [Emily Badger and John Eligon/New York Times, earlier]
- New conspiracy-minded attack on foodmakers’ use of sugar is led by Stanton Glantz. Yes, that Stanton Glantz [Allison Aubrey/NPR, Vaping Post April, our earlier coverage]
- “Five Below, Trendy Retailer, Sues 10 Below, Ice Cream Seller, For Trademark Infringement” [Timothy Geigner, Techdirt]
- Will it ever end? “Monkey Selfie Photographer Says He’s Now Going To Sue Wikipedia” [Mike Masnick, TechDirt, earlier]
- Justice Thomas argues Indian Reorganization Act is unconstitutional [Upstate Citizens for Equality v. U.S., land-into-trust, dissenting from denial of certiorari]
- “How much does it cost to reimburse a probation officer for $60 pants? About $4,300, so far” [John Beauge, PennLive]
- On Gill v. Whitford, partisan gerrymandering, and the uses of math in law [Erica Goldberg]
- Brazil makes progress on fighting corruption, advancing rule of law [Juan Carlos Hidalgo on new Cato policy analysis by Geanluca Lorenzon]
- “Activision are fighting a [trademark] for ‘Call of DooDee’, a dog-poop-removal service” [PC Games]
Our discussion, kicked off with my opening essay earlier this month, continues with Michael McDonald and Raymond La Raja and now my response to them. (& welcome Election Law Blog/Rick Hasen readers). In other news, I played a bit part (as guest speaker) in this William & Mary project using GIS tools to redraw Virginia house districts, thanks to Profs. Rebecca Green and Robert Rose.