Brett Kavanaugh (AP/Alex Brandon)

How Brett Kavanaugh could freeze gerrymandering reform nationwide

The Supreme Court could get in the way of the movement to end political gerrymandering


AUSTEN ERBLAT
January 8, 2019 9:00AM (UTC)

This article originally appeared at WhoWhatWhy and is reprinted at Salon with permission.

The US Supreme Court’s Friday decision to take on two cases that deal with partisan gerrymandering is worrying some critics, who argue that a ruling could set a dangerous precedent that prevents lower courts and other bodies from intervening.

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The Supreme Court will likely hear oral arguments in the cases of Rucho v. Common Causeand Lamone v. Benisek from North Carolina and Maryland, respectively, in March, but legal experts are already weighing in on what the decision to even hear the case could mean.

“Don’t take an agreement to hear case as a sign the Court will police gerrymandering,” tweeted Rick Hasen, professor of law and political science at UC Irvine and an election law expert. “It is actually the opposite.”

Hasen, in an October 2018 post for the Harvard Law Review, feared that the conservatives on the court will say that the issue is a political question, not a legal one.

“There is every reason to believe that the Court will take the case up on mandatory appellate review and that new Justice Brett Kavanaugh will join the Court’s four other conservatives to hold that partisan gerrymandering claims are non-justiciable,” he said. “Such a holding will embolden partisan legislators who control the redistricting process to push things about as far as they can without fear of federal court intervention.”

Common Cause, a party in both cases, filed complaints in each state that the ruling party in those states — North Carolina’s Republican Party and Maryland’s Democratic Party — were engaged in unconstitutional partisan gerrymandering to assure their party would keep power in subsequent elections.

“Common Cause argues that extreme partisan gerrymandering punishes supporters of the minority party based on their political beliefs and in violation of the First Amendment,” the organization said in a statement. “The Supreme Court announcement comes after several states approved major changes to their redistricting processes via ballot initiatives and legislative measures in 2018. Citizens unequivocally said they want to revolutionize how legislative and congressional districts are drawn — by limiting the power of politicians and giving it to mapmakers who value community input and transparency.”

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Karen Hobert Flynn, the president of Common Cause, hopes that the Supreme Court can set a rule that would apply to all states, preventing unconstitutional partisan gerrymandering.

“Whether it is Democrats or Republicans manipulating the election maps, gerrymanders cheat voters out of true representation,” she stated. “The Supreme Court has the opportunity to set a clear standard that will restore a meaningful vote to millions of Americans disenfranchised by gerrymanders in Maryland, North Carolina and across the country.”

Hasen said he thinks the Supreme Court should stay out of the debate, except in the most extreme circumstances, as intervening would be a top-down approach that could prevent lower courts, legislatures, and independent parties from addressing partisan gerrymandering in a way that more effectively meets the needs of each state and the wishes of voters.

“It is easy to imagine a scenario where the state of Michigan, for example, passes redistricting reform establishing a commission, and Republicans in the Michigan legislature challenge the initiative in federal court arguing that the Constitution’s Article Igives only the state legislature and not the people acting through the initiative process the right to pick the rules for congressional elections (subject to congressional override),” Hasen wrote in the Harvard Law Review post. “Early research shows that while redistricting commissions are not perfect, they tend to draw more competitive lines and avoid the creation of extreme gerrymanders, showing much less partisan bias. But if the Court overrules Arizona, this option will be off the table.”

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“In short, just when you think things are bad with election reform, they stand to get a whole lot worse,” he concluded.


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