Is there a chill in the air?
by Tom Sullivan
The Supreme Court's fall session promises to be a consequential one for voting rights. In Texas, in North Carolina, in Wisconsin and elsewhere, who gets to vote and whose votes count equally is up for grabs.
Justice Samuel Alito oversees federal courts in Texas. Alito put a temporary hold Monday on a lower court ruling invalidating two of the state's congressional districts as racial gerrymanders. He wants input from minority groups before allowing the Texas appeal to move forward.
Under court order, the North Carolina legislature's GOP leadership just finished redrawing state district maps this week. A U.S. District Court threw out the 2011 maps as racial gerrymanders in 19 House and 9 Senate districts. Whether the new ones are any improvement Democrats find questionable:
Graig Meyer, D-Orange, thinks the new maps are just as bad, if not worse, than the old ones.If a panel of judges court doesn't approve the new NC maps, the court could redraw them. Meanwhile, Republicans holding seats in those 2011 districts continue to vote on bills passed by super-majorities in both houses. Texas argues in its appeal for a stay that no new elections for gerrymandered districts should take place before 2020. That is, until after a full ten-year redistricting cycle has passed. "Stall and delay is the favorite tactic used by Attorney General Paxton," Texas state Rep. Mary González, vice chair of the Mexican American Legislative Caucus, said of the actions in her state. That is a pattern across states.
“The courts threw out their old maps for being racially gerrymandered," Meyer said. "And instead of drawing more fair and representative maps, they drew maps that will either maintain their majorities or possibly give them a chance to increase their majorities.
Two principal tactics are used in gerrymandering: "cracking" (i.e. diluting the voting power of the opposing party's supporters across many districts) and "packing" (concentrating the opposing party's voting power in one district to reduce their voting power in other districts).The New York Times this week highlighted how new mathematical tools have made the kind of "surgical precision" behind the gerrymanders in North Carolina common in state after state where Republicans control redistricting. In Wisconsin, for example:
In the next election, in November 2012, Republicans won only 47 percent of the vote but 60 of 99 seats in the Assembly. In the midterm year of 2014, they won 57 percent of the Assembly vote and 63 seats, and in 2016, they won about 53 percent of the Assembly vote and 64 seats. Wisconsin is a purple state: Barack Obama won it twice, and Donald Trump barely carried it, by 22,000 votes. But one-party control continues to produce policies — more union busting, abortion restrictions and lately $3 billion in proposed tax credits for the electronics giant Foxconn — associated with a deep-red electorate. "I’d never seen anything like that before," Schultz said of the election results that followed the redistricting. ‘‘I started to see how powerful and unbelievable the redistricting process was."The Supreme Court will address in Gill v. Whitford whether the concept of a voting "efficiency gap" renders partisan gerrymanders unconstitutional. The court has so far never taken on the issue beyond racial gerrymandering.
The Democratic plaintiffs who are challenging Wisconsin’s map in Gill v. Whitford, represented by the Campaign Legal Center, will argue to the Supreme Court next month that partisan gerrymandering, like racial gerrymandering, violates voters’ rights to be treated equally. They will also offer a second argument, based on the First Amendment, that comes from Justice Kennedy. He suggested in Vieth v. Jubelirer that gerrymandering could violate the right to freedom of expression and association, by "subjecting a group of voters or their party to disfavored treatment by reason of their views."It is taken as a given in boxing matches that each fighter is hoping "to knock each other’s heads off," write political scientists, Bernard Grofman of the University of California, Irvine, and Gary King of Harvard. Low blows are still impermissible.
Experts for the Gill plaintiffs used multiple metrics to show a high degree of bias in Wisconsin’s Assembly elections. In striking down the Assembly map, the three-judge panel relied primarily on a metric called the efficiency gap, which measures ‘‘wasted votes,’’ as described by its creators, the University of Chicago law professor Nicholas Stephanopoulos and the political scientist Eric McGhee. Wasted votes are those cast for a losing candidate or above the number a winning candidate needed to prevail. The efficiency gap is low statewide when the number of wasted votes in a given election is similar for both parties, and it’s high when one side wastes votes at a far greater rate, because its voters are densely concentrated or thinly spread. In other words, the efficiency gap tracks packing and cracking.The addition of Justice Neil Gorsuch to the Supreme Court makes the courts less of a guardian for voting rights than they have been since the court in Shelby v. Holder invalidated the preclearance formula in Section 4 of the Voting Rights Act:
"There was some hope in the voting rights community, especially with a sympathetic Supreme Court, that courts would increasingly provide the role of being a back stop of more egregious limitations on voting rights," Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog, told Talking Points Memo back in April just after Gorsuch was confirmed to the bench. "Now all of that is off the table."Gorsuch is now a wild card in how the Supreme Court might rule in voting rights cases.