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Supreme Court discussing partisan gerrymandering behind closed doors Friday

The Supreme Court is scheduled to return to a deeply divisive issue on Friday when the justices meet behind ...

Posted: Dec 7, 2018 2:46 PM
Updated: Dec 7, 2018 2:46 PM

The Supreme Court is scheduled to return to a deeply divisive issue on Friday when the justices meet behind closed doors to discuss an issue left unresolved last term: when do states go too far in drawing district lines for partisan gain?

The court has never established a standard to resolve extreme partisan gerrymanders, and if it chooses to do so, it could revolutionize the way congressional and state legislative maps are drawn.

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The issue often divides conservatives, who have suggested that courts should steer clear of such political disputes, and liberals, like Justice Elena Kagan, who contend that courts should be able to articulate a standard to combat a practice she believes "enables politicians to entrench themselves in power against the people's will."

Last term, the justices heard a case out of Wisconsin called Gill v. Whitford and critics of partisan gerrymandering hoped that a divided court -- led by Justice Anthony Kennedy -- might issue a sweeping ruling. Instead, the court dodged key issues and sent the case back down to the lower courts to take another look at a threshold issue.

Writing for a 9-0 court, Chief Justice John Roberts said that the Democratic plaintiffs challenging Republican-drawn maps had not done enough to establish "concrete and particularized injuries" necessary to bring the case. Although the opinion was unanimous, it sidestepped the merits of the case and masked deep divisions on the court. Kagan, writing for the liberals on the bench, agreed the case should be sent back, but in a concurring opinion offered a roadmap for future challenges.

"Courts -- and in particular this court -- will again be called on to redress extreme partisan gerrymanders," Kagan wrote. "I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law," she said.

Impact of Kennedy retirement

One very important thing happened after Kagan wrote the opinion. Kennedy retired.

Unlike his conservative colleagues, Kennedy believed a standard was possible, although he never found one he liked.

After he retired, some critics of partisan gerrymanders lamented that they might have lost their best hope at a judicial solution to the problem.

Rick Hasen, an election law expert at the University of California, Irvine, notes that Brett Kavanaugh, Kennedy's replacement, has not ruled on the issue as a judge.

"But his overall judicial philosophy suggests he's likely to join with other conservatives and hold that courts have no business policing the political drawing of lines under the U.S. Constitution," Hasen said.

North Carolina districts

Friday's case, Rucho v. Common Cause, is brought by voting rights groups and voters who filed a lawsuit arguing that North Carolina's 2016 congressional district maps drawn by Republican legislators amount to an unconstitutional partisan gerrymander that intentionally diluted the electoral strength of individuals who oppose Republicans.

They also say the maps illegally punished supporters of non-Republican candidates on the basis of their political beliefs in violation of the First Amendment.

In August, a three-judge district court panel issued a 321-page opinion and held that the North Carolina voters had the legal right to bring claims and that the plan violated the Constitution.

The court said that the state General Assembly "deprived Democratic voters of their 'natural political strength' by making it difficult for such voters to raise money, attract strong candidates and motivate fellow party members and independent voters to campaign and vote."

Paul Clement, a lawyer for North Carolina's Senate Redistricting Committee argues in briefs before the Supreme Court that the lower court was wrong when it identified a test to strike down the map as unconstitutional. Courts cannot create workable tests for "separating excessive partisan gerrymandering from the run-of-the-mill consideration of partisan advantage by legislatures organized along party lines," Clement argues.

"As decades of fruitless efforts have proven, trying to identify 'judicially discernible and manageagble standards' for adjudicating generalized political grievances is an exercise in futility," he wrote.

But the challengers told the justices a different story.

They pointed to what occurred in North Carolina in the 2016 election and said that Republican candidates won 10 out of 13 seats, even though the statewide vote was nearly tied.

North Carolina state Rep. David Lewis, the co-chair of the Joint Select Committee on Congressional Redistricting, convened a meeting in 2016 and said, "I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats."

"When politicians feel brazen enough to not just admit but to openly declare that they are drawing political lines to rig the elections and punish certain voters, we need the Supreme Court to step in and say enough is enough," said Kathay Feng, a lawyer representing the challenges from Common Cause.

The justices could announce its action on the case as soon as Friday afternoon.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 479326

Reported Deaths: 9353
CountyCasesDeaths
Harrison32779484
Hinds30924582
DeSoto30319353
Jackson23542341
Rankin21235366
Lee14803219
Madison14120271
Jones13327223
Forrest13078236
Lauderdale11501303
Lowndes10377176
Lamar10163130
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Washington6900150
Monroe6459159
Neshoba6441201
Warren6387163
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Panola6203125
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George466072
Scott454796
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Tate4327101
Simpson4313112
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Calhoun263940
Holmes261387
Smith248048
Yalobusha219647
Tallahatchie217550
Walthall209958
Greene206845
Lawrence205732
Perry198553
Amite197651
Webster195042
Noxubee177739
Montgomery171654
Jefferson Davis167442
Carroll161437
Tunica150834
Benton141533
Kemper138039
Claiborne126134
Choctaw126026
Humphreys125937
Franklin116328
Quitman103426
Wilkinson101536
Jefferson87333
Sharkey62320
Issaquena1926
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Alabama Coronavirus Cases

Cases: 778549

Reported Deaths: 13665
CountyCasesDeaths
Jefferson1105871747
Mobile704651206
Madison49152610
Baldwin35946479
Shelby35796302
Tuscaloosa33410532
Montgomery32906672
Lee22231216
Calhoun20791397
Morgan19605326
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Houston16452368
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Limestone14376182
Cullman14348246
Elmore14241256
Lauderdale13298278
Talladega12699230
DeKalb12036233
Walker10430323
Autauga9568133
Blount9555152
Jackson9235146
Coffee8728169
Colbert8426179
Dale8410170
Escambia6526114
Tallapoosa6501172
Covington6396163
Chilton6293141
Russell598555
Franklin5719100
Chambers5315133
Marion4734115
Dallas4665182
Clarke457076
Pike456294
Geneva4315116
Winston417192
Lawrence4086108
Bibb401680
Barbour341968
Marengo323183
Butler314988
Monroe314652
Pickens300470
Randolph299955
Henry298356
Hale289383
Cherokee284652
Fayette275672
Washington244848
Crenshaw235168
Clay225163
Macon217657
Cleburne217149
Lamar192140
Conecuh179646
Lowndes170158
Coosa166432
Wilcox155736
Bullock147742
Perry136036
Sumter124136
Greene120142
Choctaw72826
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