Monday, June 18, 2018

It sucks that Wisconsin is still gerrymandered All the more reason to take out Walker

We waited months to find out whether Wisconsin's maps were illegally gerrymanderd. And we ended up with....this?

Basically, SCOTUS punted on having to answer the question as to whether the Wisconsin GOP's maps should be struck down. Instead, Chief Justice John Roberts claimed that the individuals had to prove that their right to representation and/or voting was prevented by such a gerrymander, instead of having a group of people (Democrats) be the ones claiming discrimination and injury.
Under normal circumstances, Roberts wrote, "we usually direct the dismissal" of the case. He added, "This is not the usual case."

The court opted instead to send the case back to the lower court so the challengers might have another chance to "prove concrete and particularized injuries" by showing there had been a burden on their individual votes. That showing, in turn, would allow the challengers to proceed to the merits of the case....

Roberts stressed that "we express no view on the merits of the plaintiffs' case." But he also cautioned that such challenges might be hard to bring down the road.

He noted that how the challengers bring these cases is key.

"It is a case about group political interests, not individual legal rights," he wrote. "But the Court is not responsible for vindicating generalized partisan preferences. The Court's constitutionally prescribed role is to vindicate the individual rights of the people before it."
Law professor Rick Hasen is always a great read on laws related to voting and elections, and he wrote a piece breaking down the (non)-decision for Slate. Hasen says while all 9 justices agreed not to strike down Wisconsin's map (for now), and 7 agreed that it was still an open question whether one-sided gerrymandering could be struck down, an ultimate decision will come down to whether Anthony Kennedy goes with right-wing John Roberts, or left-wing Elena Kagen. Notably, both justices authored opinions in the case.
Roberts’ opinion is deceptively minimalist, as is his style. All the court decided was that these questions need to be assessed on a district-by-district level. The court explicitly said it was saying nothing about whether there were standards to separate permissible from impermissible use of partisan information in drawing district lines. Indeed, it would be perfectly consistent with Roberts’ opinion for the court to say, in a few years when the case comes back: Sorry, you’ve met the standing requirements, but you have no injury. Case closed.

Justice Kagan signed onto that majority opinion but did two things in a separate concurring opinion for herself and the other liberal justices. First, she said it should be relatively easy to meet the standing requirements in a district-by-district claim, regardless of whether one sits in a district that is “packed” (cram lots of people of one party into a single district) or “cracked” (spread voters from one party around). She suggested that if the substantive standard for proving partisan gerrymandering is bad partisan intent, it will be pretty easy to prove injury in these districts.

Second, and more to the point of enticing Justice Hamlet [Kennedy], Justice Kagan glommed onto Justice Kennedy’s favorite theory for what’s wrong with partisan gerrymandering: It is a First Amendment associational injury. In Justice Kennedy’s thinking, partisan gerrymandering might be unconstitutional if people are suffering in their political representation solely because they are members of one party or another. Justice Kagan not only fleshed out and endorsed that theory (the beauty pageant again). She also tried to prebut any standing objections, suggesting that state political parties would be in an excellent legal position to assert a First Amendment injury across an entire state when the state has engaged in egregious redistricting.

It’s a nice theory, but it only works with Justice Kennedy coming along. And Kennedy did not come along for the ride Monday with Justice Kagan. He didn’t reject it either, leaving him where he’s been since 2004, in the middle, watching the action around him.
Today's (in)decision was a pathetic bailout by SCOTUS, to be sure. But it also leaves one sure-fire way to end gerrymandering in Wisconsin starting in 4 years - booting out Scott Walker this November. Flipping the State Senate or even the Assembly in 2020 also would guarantee fair maps, but you can't gerrymander a statewide vote, and any governor can veto maps no matter who is on charge.

And that's why I wonder if the GOP "winning" this redistricting case might hurt them more than it helps them, at least at the ballot box in November. Because one of the last things independent voters support is gerrymandering and related election-rigging. Related to that, WisDems should think "Challenge Accepted", and have extra motivation to win this Fall.

Now Wisconsin Dems can tell the voters "We are the only party that will end gerrymandering in Wisconsin." And they'd better say it early and often for the next 4 1/2 months.

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