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Thursday, March 29, 2018

Supreme Court and Gerrymandering

  Today I heard some of the most interesting and important oral arguments I have ever heard.  The case involved a challenge to Maryland's Democratic gerrymandering scheme which resulted in Maryland going from a 6-2 Democratic advantage to 7-1.  Maryland is generally a 60/40 Democratic state.  But with gerrymandering its congressional delegation was 87.5% Democratic.
      Before getting into the argument let me give you the setting.  I got into the lawyers line about 6:00 A.M.  I became a member of the Supreme Court bar for the sole purpose of being able to get into the lawyers line (and to write e mails to you).  I was among the first lawyers.  The public line had formed the night before.  I chatted with several of the lawyers in line with me.  Three were with The Brennan Center For Justice.  There were also lawyers from the ACLU and other public interest organizations.  The lawyers from the Brennan Center had organized and filed briefs in opposition to Maryland's gerrymandering scheme.  They had also filed briefs in opposition to North Carolina and Wisconsin's Republican schemes.  They take the position that extreme gerrymandering whether Republican or Democratic is unconstitutional.  Once in the courtroom I had a second row seat, two arm lengths away from Nina Tottenberg and Pete Williams. 
     By way of background, the Supreme Court has already heard arguments involving Wisconsin's gerrymandering.  The Court has held in abeyance the challenge to North Carolina's scheme.  So at the moment there is a Democratic and a Republican scheme before the Court and a Republican scheme on hold.  If I could take a poll of Democratic  politicians across the country, I would bet that they would be happy if Maryland's scheme goes down along with Wisconsin's and North Carolina's. 
       There is a significant procedural difference between the Wisconsin case and the Maryland case.  In Wisconsin there has been a Court Of Appeals decision that their scheme is unconstitutional.  In Maryland, the plaintiffs are appealing a lower court's ruling that it would not  issue a temporary restraining order barring Maryland from implementing the gerrymandering plan.  In other words in the Maryland case, there has not been a ruling on the constitutionality of its gerrymandering.  This turned out to be a big issue in oral arguments.  The justices across the spectrum asked questions suggesting that it might be a good idea for them to do nothing until the lower court decides whether Maryland's scheme is unconstitutional.  Alito and Roberts really gave the attorney opposing gerrymandering a hard time on whether they should hear the case. This would mean, of course, that Maryland would not be impacted by the Supreme Court until at least the 2020 election.  Sotomayor and Ginsberg both suggested that it is too late for the Supreme Court to have any impact on Maryland's 2018 election.  While Democrats might like that result, it might be that the court would also not do anything in the Wisconsin and North Carolina cases where Republicans are unfairly favored.  In fact, Breyer made the suggestion that the court should have a rehearing in the Wisconsin case and then consolidate all three cases for a later hearing and decision.  The other jusices seemed receptive to that idea.  So don't be surprised if that is the result.  I really did not like where this whole line of questioning was going.
         Going to the merits, all of the justices who spoke seemed to feel that extreme gerrymandering is unconstitutional.  Thomas had laryngitis. The issue is then, what is the definition of "extreme."
          One of the interesting aspects of this  is that Maryland was represented by its Democratic attorney general.  The Republican governor of Maryland filed a brief in opposition to his attorney general.  In the lower court the deposition of Congressman Chris Van Hollen was taken.  He testified unabashedly that the purpose of the gerrymandering was to get one additional seat to go Democratic.  So they created a district that goes from the suburbs of Washington  across the panhandle of Maryland which is rural. Included in the district is the wealthy city of Potomac.  Roberts pointed out that there are farmers in Potomac as well as farmers in rural Maryland.  The difference is that the farmers in rural Maryland are real farmers while the farms in Potomac are hobbies.  In order to create this crazy district Maryland moved about 350,000 voters out of the district and moved about 350,000 into the new district.
       Kennedy as always asked an interesting question.  He asked if Maryland could pass a law mandating that there be a 7-1 congressional split.  The attorney general answered,"no, that would be unconstitutional."  Therefore, Kennedy asked why is this scheme  not unconstitutional since it came into effect pursuant to the Maryland redistricting law.  I thought the attorney general did not have a good answer.
       I happened to be sitting next to a Vanderbilt law professor who is African American.  At one point Roberts drew a distinction between gerrymandering based upon racial factors as opposed to gerrymandering along political lines.  Roberts said that perhaps political gerrymandering could be given leeway but under no circumstances will the Supreme Court allow racial gerrymandering.  The law professor and I gave each other elbow nudges.  By the way, there are plenty of conservatives who say that the courts should never get involved in gerrymandering questions.  Roberts made it clear that the Supreme Court in the past has and in the future will  get involved when racial gerrymandering is an issue.  Kagan said that in many ways the Maryland case is easier to decide than the racial cases.
        Breyer has a tremendous sense of humor.  He has displayed it at every hearing I have attended.  One of the attorneys suggested that it was important to consider the testimony of Van Holland in making a decision.  Breyer suggested that might be a bad idea.  Future redistricters are not stupid.  They would know better than to say out loud what their true intentions were.  Kennedy said that redistricters could get away with extreme gerrymandering as long as they don't publicly state their intentions.
        Near the end of oral arguments I thought Breyer got a terrific concession from the attorney general.    He got the attorney general to concede that in a case of extreme gerymandering it would be possible for the Supreme Court to do the redistricting.  This is in response to Roberts saying in the Wisconsin case that the court should not get involved in the gobbledigook of redistricting.
       I could make this e mail much longer, but I don't want to lose the half who are still with me.  Let me end by saying that it's much easier for me  in the audience to imagine what I would argue as opposed to  the one actually arguing.  Roberts said it would not be such a big deal if the Court's decision had no effect  until 2020.  The lawyer opposing gerrymandering gave a very technical answer.    I wish he would have thought of the old axiom, "Justice delayed is justice denied."  My guess is that this case is going back to the district court without a decision on constitutionality.  Stay tuned.  Thanks for reading.

P.S.  Michigan is horribly gerrymandered.  Hopefully that will go away after 2018. There will be an initiative on the November ballot to provide for a bipartisan commission to draw district lines both at the State and federal levels.  If passed it will go a long way toward fairness in elections.

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