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“People’s Legislative Power”: Arizona’s Nonpartisan Redistricting Plan Is A Slam Dunk At The Supreme Court

In a significant victory for election reform advocates, a unanimous Supreme Court upheld Arizona’s redistricting plan, which had been challenged by Republicans.

The case comes just a year after the Court’s liberals, plus Justice Kennedy, upheld the legitimacy of the Arizona Independent Redistricting Commission, which had been created by ballot initiative. That case was controversial, since the Constitution specifically requires districts created “by the legislature” of each state, not by an independently constituted commission. Justice Ginsberg, writing for the Court, said that the “people’s legislative power” was close enough. Not surprisingly, the Court’s more literalist wing was outraged.

It’s perhaps surprising, then, that today’s case, Harris v. Arizona Independent Redistricting Commission, was decided 8-0.  On the one hand, the case may represent a consensus on at least some aspects of election law—and is thus very good news for electoral reform activists. On the other hand, since it basically defers to a state decision, it’s not a robust test case.

The facts of the case are straightforward. Despite being independent, the five-person Redistricting Commission is still divided among Democrats, Republicans, and ostensible independents: two, two, and one, respectively, with intricate appointment procedures. In April 2012, the two Democrats and one independent modified three districts, and the two Republicans voted against, arguing that the new plan favored Democrats.

Contrary to what you might expect, however, the Supreme Court has never said that partisan gerrymandering is against the law. If the districts disadvantage minorities, a redistricting plan might violate what’s left of the Voting Rights Act. And if they contain wildly different populations, the plan might violate the Equal Protection Clause of the Constitution. But it’s not actually against the law to be craven, manipulative, and duplicitous.

Given that, it’s not surprising that the petitioners lost—though it is surprising that they lost unanimously.

First, while Republicans alleged that the plan was designed to benefit Democrats, there was significant evidence in the record that showed it was actually designed to meet the requirements of the Voting Rights Act. (The plan was ratified before the Supreme Court eviscerated the Voting Rights Act in Shelby County v. Holder.) In particular, it seems those concerns swayed the one independent member of the commission.

Second, the population deviations in the Arizona plan were around 4 percent. That’s well below the 10 percent threshold the Court has adopted when applying the Equal Protection clause. True, that variation was all on one side—Republican-leading districts were generally more populous than Democrat-leaning ones. But that’s not necessarily illegal, and anyway the variation can be explained by the need for the plan to conform with the Voting Rights Act.

Third, while part of the Voting Rights Act was held unconstitutional in 2013, in Shelby County, that doesn’t corrupt Arizona’s motives in complying with it back in 2012. At the time, the redistricting commission was trying to obey the law, not stack the decks.

Does this unanimous decision represent a new dawn for election reform? Not quite.

To be sure, the unanimity does suggest that the redistricting commission is now a fait accompli. No one dissented, or even wrote a separate concurrence, to protest its existence. One wonders if Justice Scalia might have done so, but Chief Justice Roberts, certainly, is not likely to question one of the Court’s recent precedents; he is particularly committed to the legitimacy of the Court and its decisions. On the contrary, he has now joined an opinion upholding the commission’s decision—and one that tends to favor Democrats.

On the other hand, the thing about unanimous decisions is that they tend to signal, at least retroactively, that these cases were relatively easy ones. They are precisely not the ones that indicate a lot of movement on key issues.

For example, while the Religious Right cheered a religious freedom case decided unanimously by the Supreme Court last year, the reason it was unanimous is that it was an old school, religious-liberty-as-shield-against-the-government case. That case involved a prison inmate wanting to grow a half-inch beard; no third parties were involved, no harm was done, and the prison’s safety rationales were ludicrous. That’s why it was uncontroversial.

While much of the Court may not like the context of the commission’s decision, that question is now settled, and what’s left is a far-fetched constitutional claim against a reasonable, and well-documented, state agency decision.

And, as usual in unanimous decisions, Justice Breyer’s opinion tends toward the minimalistic. No wild statements of law or policy here; this opinion was generated to build consensus, and it did so.

Still, this is a significant step forward for election reform. The Arizona Redistricting Commission is an innovative idea, with an elaborate attempt to minimize partisanship and increase accountability. There were constitutional grumblings last year when the Supreme Court decided “the legislature” could also mean “the people,” but as a matter of policy, the commission is an important model for how to improve the messy, dirty redistricting process. On it rides many hopes of democracy advocates.

And today, it won a ringing endorsement from a unanimous court.

 

By: Jay Michaelson, The Daily Beast, April 20, 2016

April 22, 2016 Posted by | Arizona, Election Reform, Gerrymandering, Redistricting | , , , , , , | Leave a comment

“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

“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees

After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:

The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …

Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.

When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)

Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.

But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain.  So control of the commanding heights of the Supreme Court is more important than ever.

What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous.  And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).

But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.”  Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice.  Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.

If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016

March 1, 2016 Posted by | Democrats, Filibuster, Republicans, U. S. Supreme Court Nominees | , , , , , , , , | Leave a comment

“Wilier Than Trump Could Ever Dream Of Being”: Trump Should Think Twice About Picking On Bill Clinton

Donald Trump might be picking the wrong schoolyard fight.

His modus operandi is to bully. And it’s proved to be an ideal strategy for tying his Republican rivals in knots. But now he’s trying it on someone whose powers of political legerdemain are legendary: Bill Clinton.

The 69-year-old former president is wilier than Trump could ever dream of being. This is the man who hung the 1995-96 government shutdown around the neck of his chief political adversary, House Speaker Newt Gingrich. A formidable huckster in his own right, Gingrich was the It Boy of conservatism and the leader of an ascendant “Republican Revolution,” but after losing his budget showdown with Clinton, his career went into permanent eclipse.

Gingrich’s oafish understudies then mounted an ill-advised impeachment campaign against Clinton, which only burnished the president’s credentials as a victim of partisan fanaticism.

Trump, by contrast, is a cad whose vulgarity and brutishness are given cover by the fact that those very qualities are cheered by a large portion of the Republican base. He’s making the P.T. Barnum bet on the Republican electorate, and so far it’s paying off.

In recent days, Trump has pounced on Hillary Clinton’s husband, in particular his record of cheating, as a new stratagem to upend her campaign. On Twitter, he asserted: “If Hillary thinks she can unleash her husband, with his terrible record of women abuse, while playing the women’s card on me, she’s wrong!”

But this only underscores another difference between Bill Clinton and Donald Trump: The former president’s record on so-called women’s issues is stellar. He appointed the first women to become U.S. attorney general and secretary of state, added Ruth Bader Ginsburg to the U.S. Supreme Court and signed the Violence Against Women Act, along with other measures that benefited women.

That’s the lesson of the Clinton White House. Slick Willie was capable of being unfaithful to his wife — in ways that disgusted women and men everywhere — and yet he also acted with foresight and responsibility in formulating policies that women care deeply about. “Compartmentalizing” is the word pundits used to describe this seeming paradox. But in fact it’s a common enough trait in political figures: Their public service is distinct from their private lives.

It is highly doubtful that Trump has the same ability. His almost cartoonish narcissism results in everything becoming personal. Challenge him in the most tentative way and he’s your enemy. And if you happen to be a woman, get ready for the most juvenile of sexist taunts.

Fox News anchor Megyn Kelly learned that lesson on live TV. During the first Republican presidential primary debate, she pressed Trump on comments he had made about women in the past, among other issues. He responded over the next several days with a peevish onslaught that culminated in a crude suggestion that Kelly had been menstruating.

Every savvy and ambitious woman in America knows that scenario. Tick off a powerful man and wait for the backlash. The more out-gunned the man is intellectually, the viler the putdown you can expect.

References to women’s menstrual cycles or their use of a toilet — all part of Trump’s charm offensive — are not the way to win female votes, Republican or Democratic. Women are more than half of the population and they vote in higher percentages than men. Our vote matters. And it’s not just the stereotypical issues that move women; we care about education, equal pay and health care policy.

If Trump hopes to pull himself out of the verbal gutter and address female voters, he’s going to have to start talking real policy. But that brings up a third key difference between him and the Clintons.

Bill and Hillary have long, long records of formulating, enacting and defending policies. They’re not records of unqualified success or popularity, to be sure. But there is not a policy area in American government in which they have not taken a leading role at the highest level.

Trump, when he has attempted even the roughest outline of a policy, has proved to be a charlatan. He’d like to claim that Hillary Clinton is using her gender to sell herself, but she doesn’t have to. Her chops dwarf those of anyone the Republican Party can stand against her. That is what she will run on.

If the GOP chooses Trump as the nominee, the general election will be a referendum on him — not on Hillary, as Republican strategists might wish it to be.

So let him tear into Bill and Hillary in any way he likes. The smart money, as always, is on the Clintons.

 

By: Mary Sanchez, Opinion-Page Columnist for The Kansas City Star; The National Memo, December 30, 2015

January 1, 2016 Posted by | Bill Clinton, Donald Trump, Hillary Clinton | , , , , , , , | Leave a comment

“Racist And Offensive”: Scalia Makes Racially Charged Argument In Affirmative-Action Case

About a month ago, Supreme Court Justice Antonin Scalia spoke to first-year law students at Georgetown, where he drew a parallel between gay people, pedophiles, and child abusers. What would he do for an encore?

This morning, the high court heard oral arguments in a Texas case on affirmative action and the use of race in college admissions, and NBC News reported that Scalia “questioned whether some minority students are harmed by the policy because it helped them gain admittance to schools where they might not be able to academically compete.”

At first blush, that sounds pretty racist, so let’s check the official transcript:

“There are – there are those who contend that it does not benefit African Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less – a slower-track school where they do well.

“One of – one of the briefs pointed out that – that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too ­­ too fast for them.”

If we were to go out of our way to be charitable, I suppose we could emphasize the fact that Scalia prefaced these comments by saying “there are those who contend.” In other words, maybe the far-right justice himself isn’t making such an ugly argument, so much as the justice is referencing an offensive argument from unnamed others?

It is, to be sure, a stretch. At no point did Scalia say he disagrees with “those who contend” that African-American students who struggle at good universities and are better off at “a slower-track school.”

David Plouffe, a former aide to President Obama, highlighted Scalia’s quote this afternoon and asked a pertinent question: “Motivation lacking for 2016?”

As for the case itself, Fisher v. Texas, which has been bouncing around for a long while, MSNBC’s Irin Carmon reported that the dispute stems from a complaint filed by Abigail Fisher, a white woman “who claims she was denied admission to the University of Texas because of her race, despite the fact that a lower court found she wouldn’t have been admitted regardless of her race.”

And how did oral arguments go? Carmon added:

The liberals worked to poke holes in the argument that Texas cannot put race on the list of holistic factors. Justice Ruth Bader Ginsburg made the same point she had made the first time Fisher came to the court, which is that the supposedly “race-neutral” process of admitting the top 10 percent, which isn’t being challenged in this case, isn’t race-neutral at all, because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Elena Kagan didn’t say a word, because she has recused herself, having worked on the case as solicitor general. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.

Meanwhile, three of the four most conservative members of the court reiterated that they oppose affirmative action and would overturn the court’s precedent that it is allowed as a last resort to promote educational diversity. Chief Justice John Roberts repeatedly asked when remedies to racial discrimination would no longer be needed. (Judging from his past decisions, he believes the time is now.) Justice Samuel Alito tried to argue that advocates for affirmative action are themselves making racist or condescending judgments.

A decision is expected by June.

 

By: Steve Benen, The Maddow Blog, December 10, 2015

December 11, 2015 Posted by | Affirmative Action, African Americans, Antonin Scalia, Racism | , , , , , , , , | 2 Comments

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