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Redistricting lawsuit may be too late for 2018
March 20 2018, 11:34 | Ann Lamb
For the first time, the Supreme Court seems receptive to putting limits on partisan gerrymanders
"We are in a situation now where politicians are picking their voters rather than the other way around", he said.
Liberal justices voiced sympathy for the Democratic voters who challenged the Republican-drawn legislative map in Wisconsin as a violation of their constitutional rights. Which is why court watchers are paying close attention to Kennedy this time around - it's likely his vote will decide the case. The court has a 5-4 conservative majority.
Partisan gerrymandering - molding electoral maps to give the majority party an edge over opponents - has always been a fact of American political life, but the practice faces a U.S. Supreme Court challenge next week.
The Pennsylvania lawsuit was filed by the League of Women Voters and the Public Interest Law Center on behalf of voters in each of the state's congressional districts. Murphy conceded it would be. He wrote in 2004 that he would be open to ruling for the challengers if the court could be shown a good way to measure and manage excessively partisan districts.
Wisconsin's case is unusual because it could result in a ruling that applies nationwide. Judges empowered by an anti-gerrymandering precedent from the Supreme Court will blunt the worst cases, but won't end gerrymandering. Samuel Alito also sneered, suggesting that a single paper by a "young researcher" hardly provides an adequate basis for the justices to meddle in elections across the country. In a letter to the members, Jeffrey P. Minear, counselor to Chief Justice John G. Roberts Jr., cited the justices' "concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and justices".
The bench said, "Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants", adding that it is justified if the high courts decline to quash such offences.
"What's this court supposed to do", he asked - "a pinch of this, a pinch of that?"
Using partisan social science, the plaintiffs are asking the court to find in the Constitution a hitherto unnoticed requirement for proportional representation. Arnold Schwarzenegger, former governor of California (R), calls on the Supreme Court to "terminate" gerrymandering.
Redistricting typically is done by the party controlling a state's legislature. One of them - the "efficiency gap" - counts the number of "wasted" votes for winning candidates in districts packed with the opposition party's voters, as well as for losing candidates in districts where opposition party voters were scattered.
Gersch and his crew want the courts to strike down Pennsylvania's current congressional maps, drawn and approved in 2011, and have new ones created before the next election. But intervening could, as Mr Roberts fears, push the court directly into the political fray, risking what he described as "serious harm to the status and integrity" of his court.
"What incentive is there for a voter to exercise his vote?" "It's just a two-sentence description of our claim", Smith told the Justices (one of them in particular).
What about the "precious right to vote"? asked Justice Ruth Bader Ginsburg. The legislature could draw lines that give Republicans 60 percent in each district, or it could draw lines that give Republicans 100 percent in three districts while Democrats get 100 percent in two districts. The party's majority has since expanded. Justices Ginsburg and Kagan grilled legal counsel for the employers on how they could prevail without "undermining and changing radically" the NLRA's protection of employee rights to act concertedly to improve the terms and conditions of their employment. Voting against outlawing gerrymandering in Davis or Vieth, where evidence was less compelling and the standards for resolving gerrymandering were less obvious, could be ascribed to caution on the part of the justices.
Smith responded: "Well, I don't think there's anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government".