.
The Supreme Court will hear oral argument in two key partisan gerrymandering cases on March 26; one from Maryland (Benesik v. Lamone) and one from North Carolina (Rucho v. Common Cause). In preparation for these arguments, the editors at SCOTUSblog hosted this pre-argument symposium featuring a group of experts on redistricting law. Here is a quick summary of each contributor’s essay. You can click to read each article in full.
.
Justin Levitt: Suggests that the unconstitutionality of excessive partisan gerrymandering follows from the fact that there is widespread agreement (in the legal community) that any State law that specifically requires boundaries to be drawn to disadvantage a particular political party would be unconstitutional on its face. To be sure, the record in both case includes a mountain of evidence that both states implemented a policy of deliberate partisan advantage.
Levitt adds:
“a failure to rein in renegade legislators would be not an expression of passive virtues, but an active abdication of constitutional responsibility and an open invitation to abject partisan warfare. “
Levitt is a professor at Loyola Law School, Los Angeles; he runs the website “All About Redistricting.”
.
Tyler Green: Foresees an uptick in partisan gerrymandering cases being filed, even more frequently then in the past, if the court articulated a standard for the claim:
” . . . setting a standard for partisan-gerrymandering claims in Rucho or Lamone is effectively inviting elected state officials from every minority party in all 50 states — or, depending on the standard, any voter in those parties — to file at least one lawsuit at least once every 10 years for as long as the country exists.”
Tyler Green is the solicitor general of Utah.
Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer: Are cautiously, and perhaps foolishly, optimistic that the high court will affirm the lower court’s partisan gerrymandering holdings. They urge the court to follow its on established precedent regarding racial vote dilution and that there should be no distinction between vote dilution based on race or vote dilution based on party.
Guy-Uriel E. Charles is the Ellen Schwarzman Professor of Law at Duke Law School. Luis E. Fuentes-Rohwer is Professor of Law and Harry T. Ice Faculty Fellow at Indiana University Bloomington Maurer School of Law.
.
Kaylan Phillips: Argues “The presumption in the Constitution is that states have the power to draw districts. . . Congress has not regulated how states may conduct redistricting and, under the Supreme Court’s precedent, the responsibility for redistricting remains with the states.” Thus, “Allowing a federal cause of action under the First and 14th Amendments for partisan gerrymandering upsets the delicate balance of power agreed upon in 1787.”
Kaylan L. Phillips serves as litigation counsel for the Public Interest Legal Foundation, a 501(c)(3) public interest law firm dedicated to election integrity.
.
Daniel Tokaji Explains:
“The First Amendment association theory sketched out in Justice Kagan’s [Gill] concurrence presents the most promising basis for invalidating extreme partisan gerrymanders. . . it best captures the injury inflicted by partisan gerrymandering. That includes systemic injury inflicted on a group of people through the dilution of their votes, as well as effects on the disfavored party and its supporters outside the electoral process. “
Daniel Tokaji is Associate Dean for Faculty and Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Michael E. Moritz College of Law.
.
Derek Muller Suggests:
The need for federal judicial intervention drops, . . . when one acknowledges the power of the political process to repair redistricting wrongs. He notes that 1) congress has the power to regulate the drawing of congressional districts; 2) voters in Colorado, Michigan, Missouri and Utah approved new redistricting reform measures to address the issue; and 3) partisan compromise is a reality in some states with divided government, such as is the case in Maryland – A Democratic legislature and a Republican governor must negotiate the upcoming 2020 round of redistricting.
Muller is an associate professor of law at the Pepperdine University School of Law.
