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.
Richard
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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