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“Just The Way They Do Business”: The Conservative Go-For-Broke Legal Strategy Suffers A Blow

These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.

The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.

This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300,000 residents and California gets one senator for every 20 million residents).

The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.

This case was a real long shot from the beginning, as you might gather from the fact that the conservative activists who filed it were suing the state of Texas, which is controlled by Republicans and is not exactly enthusiastic about ensuring everyone’s voting rights (the state’s incredibly restrictive voter ID law is still working its way through the courts). The problem they ran into came from the fact that the lawsuit alleged not that a state may draw districts based on the number of eligible voters and not the population, but that it must draw districts that way. That was the only way for them to file the suit, since they were trying to force Texas to change how it was drawing districts.

Since Texas had chosen to use population, just as every other state does and always has, in order to force a change the plaintiffs wanted that method declared unconstitutional. If they had prevailed, that could have meant that every state legislative district in the country would have had to be redrawn. As Ruth Bader Ginsburg wrote in the ruling, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”

About the legal audacity I mentioned before: As unlikely as this case may have been to succeed, it’s another reminder of how legally aggressive the right has been lately. Again and again, whether it’s about voting rights or the Affordable Care Act or some other issue, they’ve come up with some novel legal theory that at first gets dismissed as completely absurd, then begins to sound mainstream as conservatives see an opportunity to gain a victory and rally around it. Even if they ultimately lose in court, the controversy can open up new legal and political avenues that hadn’t been evident before.

They lost today, and if you get Samuel Alito and Clarence Thomas to agree with Ruth Bader Ginsburg and Sonia Sotomayor that your claim is bogus, you know you’ve gone pretty far. But this case leaves an open question, which is whether a state can switch to an eligible-voter count in order to draw its districts if it chooses. No state has chosen to do that, but don’t be surprised if now that the issue has gotten some attention, conservative Republican legislators in deep-red states — particularly those with large numbers of Latino immigrants — start proposing it. I’d keep my eye on Texas.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, April 4, 2016

April 5, 2016 Posted by | Conservatives, Republicans, SCOTUS, Voting Rights | , , , , , , , , | 1 Comment

“Republicans’ Coup de Grace On Voting Rights?”: Putting The Interests Of The Republican Party Over The Interests Of Voters

Last week the Supreme Court heard oral arguments in a case called Evenwel v. Abbott. The case involves an issue of increasing importance to American politics: congressional districting. It got to the Supreme Court because conservative litigators with a successful track record of fighting against the right to vote are trying to turn the logic of pro-voter rights decisions on their head. And it’s very possible that they may succeed again.

This most recent battle in the voting rights war involves two of the Warren Court’s most important decisions. One of the tactics that state legislatures used to disenfranchise African-Americans was to draw district lines (or refuse to revise them) in ways that left minority voters massively underrepresented. In Alabama in 1964, for example, some counties included 40 times more people than others. In Baker v. Carr and Reynolds v. Sims, the Supreme Court held that such schemes were illegal. States were required to adhere to a “one person, one vote” standard when apportioning their legislatures. Combined with robust enforcement of the Voting Rights Act, these landmark cases helped to end Jim Crow disenfranchisement schemes.

Perversely, this lawsuit hopes to use these decisions to turn back the clock and dilute the representation of minority voters. The theory of the lawsuit is that Texas violated the Equal Protection Clause when it drew its district lines based on total population rather than on the population of voters. The state, according to the theory, should only be able to conduct apportionment according to the number of eligible voters.

If adopted, the theory presents an obvious practical problem. Total population is measured with reasonable reliability by the Census. Eligible voters are much harder to measure, not least because the numbers change every election. (What should be counted — presidential election years? Off years? State elections? Some combination?) The discretion the measure would leave to legislators leaves the process open to more of the kind of manipulation that Reynolds v. Sims tried to minimize. Plus, it just seems illogical for a state’s representation in Congress to be based on total population, but its districts drawn by eligible voters.

Which brings us to the even bigger problem with the theory: In most cases, the effect of the rule change would be to overrepresent white voters and underrepresent minority voters. As Slate‘s Dahlia Lithwick puts it, “if the plaintiffs win this appeal, power will shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones.” To read the Equal Protection Clause to not merely permit but require the under representation of minority voters is, to say the least, perverse.

That the argument should be indefensible doesn’t mean that it can’t win. The group bringing this lawsuit scored a major anti-voting rights victory with the 2013 case Shelby County v. Holder. In that case, a bare majority of the Supreme Court gutted the Voting Rights Act. Even worse, it did so by arguing that the explicit powers given to Congress to enforce the 15th Amendment were trumped by an alleged “equal state sovereignty” principle, an idea without support in the text of the Constitution or Supreme Court precedents not written by John Roberts, save for the infamous Dred Scott v. Sanford. If the Roberts Court is willing to cut the heart out of the most important civil rights statute since Reconstruction based on arguments that feeble, it’s hard to imagine why they wouldn’t put the interests of the Republican Party over the interests of voters in Evenwel v. Abbott.

That said, oral argument did not clearly indicate how the case will come out. The Court’s Democratic nominees were predictably hostile. Anthony Kennedy, the likely swing vote, appeared curious but non-committal to the plaintiff’s novel theory. Even if the Court doesn’t buy the argument that the Constitution requires the states to use voters rather than total population, if it signals that this kind of districting is permitted the consequences could be dire.

This case has to be seen as part of a larger political struggle. The Republican Party faces a problem: Demographic changes are making its overwhelmingly white voter base a smaller part of the population. This year, their presidential primary, in which the major candidates try to out-xenophobe one another, will make this problem worse rather than better. To combat this, Republican states have adopted various measures to suppress minority voters — if you can’t attract their votes, keep ‘em from the ballot box or try to make their votes count less through gerrymandering. Their allies in the Supreme Court might well use this case to assist in this vote-suppression effort once again.

 

By: Scott Lemieux, The Week, December 15, 2015

 

 

December 16, 2015 Posted by | Gerrymandering, Republicans, U. S. Supreme Court, Voting Rights Act | , , , , , , , | Leave a comment

   

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