Monthly Archives: June 2018

“Kennedy’s Retirement Could Threaten Efforts to End Partisan Gerrymandering”

Michael Wines for the NY Times:

For 14 years, as partisan gerrymanders across the country grew more extreme, Justice Anthony M. Kennedy came to symbolize hopes that the Supreme Court would eventually rein them in.

His retirement this week did not merely dampen those hopes. Experts said it also presented a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political means….

But that likelihood, some said, is quite small. In hearing gerrymander challenges during the last term, Justice Roberts worried aloud about enmeshing the court in political matters.

“There’s a chance. It’s not zero,” said Nicholas Stephanopoulos, a University of Chicago law professor who has helped lead a lawsuit challenging the makeup of the Wisconsin State Assembly. “But I think our odds plummeted as a result of Kennedy’s retirement.”…

In 2015, the Supreme Court rejected a claim by Arizona’s Republican-led Legislature that the Constitution gave it sole authority over redistricting, and that a ballot initiative that shifted the task to a nonpartisan citizens commission was illegal. Justice Kennedy joined the court’s four liberals in the 5-4 ruling. Chief Justice Roberts wrote the dissent for the court’s conservative wing.

“That case really got Justice Roberts exercised,” said Richard L. Hasen, a law professor and election-law expert at the University of California-Irvine. “It was one of the more forceful dissents he has written.” In a court where hard-line conservatives are dominant, he and others said, the constitutionality of citizen redistricting commissions might well get a second and less favorable look.

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“NAACP Sues To Throw Out Connecticut Legislature’s Map Over Prison Gerrymandering”


The NAACP and a handful of voters filed a lawsuit on Thursday to strike down the map for the Connecticut legislature before the 2020 election. The plaintiffs say that lawmakers are unconstitutionally drawing district lines when they count prisoners as part of the population of the place where they’re incarcerated.

Connecticut redraws its electoral districts every 10 years and uses the population data in each district to do so. When the state draws those new lines, it counts prisoners as part of the population where the prison is located.


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“SF Elections are Working — and Getting Even Better”

Oped from By SF election commissioners  and gi:

The current RCV system also facilitated higher voter participation than the previous December runoff system, which San Francisco used until 2004. Under that system, the first election occurred in November, followed by a second race in December if no candidate won an initial majority. Voter turnout often plummeted in the December runoff, on average by 31 percent. In the 2001 runoff for city attorney, less than 17% of registered voters participated. In the 1995 mayoral election, the number of voters declined by nearly 10 percentage points from November to December.

Some have asked why San Francisco does not use the “plurality” voting method, in which the highest vote-getter wins. Plurality voting is used to elect many governors, senators, and the president. But if plurality had been used in our mayoral election, the winner would have been elected with less than 37% of the vote, with more than 60% of voters casting a ballot for another candidate. The goal of any runoff system is to ensure that the winner has a majority (50% + 1) of the vote and is the candidate preferred by the most voters. San Francisco’s “instant runoff” elections fulfill both goals, but without the expense—both for taxpayers and candidates—of a separate runoff election. San Francisco saves approximately $3.5 million by not holding a second citywide election.

Our RCV system also has allowed voters to choose from a more diverse candidate pool. Of the eighteen offices in San Francisco elected by RCV, thirteen are held by office-holders of color, a significantly higher proportion than before RCV implementation. One study found that the other Bay Area cities using RCV—Oakland, Berkeley and San Leandro—have seen similar results. A few years ago, Oakland elected its first-ever Asian-American woman as mayor, and San Francisco just elected an African-American female mayor.

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Provocative Comments from Bruce Cain on the Efficiency Gap, Post-Gill

There’s a lengthy interview on the partisan gerrymandering cases with Professor Bruce Cain, in Pacific StandardThis part in particular jumped out at me:

Why was the efficiency gap promoted by the plaintiffs in Gill, and in the press lately, as a good measure of partisan gerrymandering?

Bruce Cain.

Bruce Cain.

(Photo: Stanford University)

The reality is, people [academics] come up with these measures, and then they fall in love with them, and then they don’t openly tell you guys in the press what the disadvantages of these measures are. But the rest of us in the redistricting community have discussed it in private, and we know what the flaws are. But there’s a conspiracy among the reform community to not share that information openly because they’re very anxious to get Mr. Kennedy, who’s on the court, to make a decision before he retires [at the end of July].

The motto in the reform community has been “We’ll adopt an imperfect measure and then we’ll fix it later.” Now you’ll start seeing articles that criticize and explain the flaws of the efficiency gap that were not published prior to the Supreme Court decision, because there’s a conspiracy to not getting in the way of finally getting a decision on political gerrymandering.

We’re being lazy. We should be working on how to figure out how to measure, and to develop a standard. And the best way to do it is at the base level, and the best opportunity is to develop it locally. But you know, you get some lawyers and some reform groups that want to—either out of idealism or enthusiasm—want the courts to [develop a standard]. And the courts are saying: “Well, we’re not capable of doing this. You guys have to evolve this.”

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Viewpoints on Justice Kennedy’s Career

Politico MagazIne has assessments of Justice Kennedy from “17 legal thinkers” at this link.  Here is an excerpt from mine:

The realization of human dignity and the importance of value pluralism are the themes that run most deeply to me in Kennedy’s opinions. He used the term “dignity” in his opinions more than any justice on the court since William J. Brennan. . . .

Kennedy also profoundly believed, whether instinctively or self-consciously, in value pluralism, along the lines of the great political thinker, Isaiah Berlin. As a value pluralist, he sought to honor and preserve, as much as possible, the competing and deep values often at stake in court cases—liberty, equality, tolerance, self-government—rather than to rush to an ultimate confrontation in which one of these values subordinates the other. Perhaps fittingly, his opinion just weeks ago in Masterpiece Cakeshop (in which he used the word “dignity” four times) exemplifies this sensibility perfectly: expressing great empathy and sensitivity to the interests of both religiously sincere believers and those of gay and lesbian people, he crafted a decision that respected both sides as much as possible. Skeptical of the use of race in public programs, he nonetheless pulled back from the brink of being a fifth vote for abolishing affirmative action completely, in recognition of the value that diversity and inclusion also play. In what I suspect was the most difficult vote of his career, he decided not to vote to overrule Roe v. Wade¸ which many had expected him to do, but to preserve its core while creating more space for those at odds with Roe to express their views through policy.

Kennedy also saw the court as a balancing force more generally in the political system, when it came to institutional cases as well as ones involving individual rights. He was what I have called a “boundary-enforcing” justice rather than one who cared primarily about bright-line rules and chasing principles all the way down to their analytical bottom. If he thought other institutions or actors had become extreme and gone “too far” in asserting their powers, he was willing to step in, through constitutional law, to assert the importance of a boundary on power—even if it was not possible to reduce the legal principle he applied to a bright-line rule that had clear necessary and sufficient criteria of application. . . . Decisions like these are often criticized by dissenting justices and others precisely because they establish a boundary but can’t be expressed in any simple bright-line legal rule. That did not deter Kennedy: If he thought institutions or powerful actors had gone too far in subordinating some set of important, constitutional values, he was willing to see the Constitution as pushing back—even if simple rules for a complex world were not always possible.


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Breaking: Supreme Court affirms without opinion lower court order rejecting partisan gerrymandering claim in North Carolina

See my series of tweets for analysis.

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Speaking Thursday at ACS Law Supreme Court Term in Review in D.C.

With the Kennedy retirement (my thoughts here and here), this should be a doozy of an event. C-SPAN is scheduled to cover.

The 2017-2018 Supreme Court Review

June 28, 2018
12:00 PM – 02:00 PM
Event Location:
National Press Club
529 14th Street NW
13th Floor
Washington, DC 20045

On June 28, ACS will host its annual panel discussion at the National Press Club reviewing the current Supreme Court Term as it draws to a close. Leading experts will discuss the Court’s noteworthy decisions and analyze emerging trends.


Caroline Fredrickson, President, American Constitution Society for Law & Policy


Thomas Goldstein, Co-Founder and Publisher of SCOTUSblog, Moderator

Richard Hasen, Chancellor’s Professor of Law and Political Science, UC Irvine School of Law

Lenese Herbert, Professor of Law, Howard University School of Law

Ria Tabacco Mar, Senior Staff Attorney, American Civil Liberties Union

Benjamin Sachs, Kestnbaum Professor of Labor and Industry, Harvard Law School

Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law, Penn State Law


Lunch begins at 12:15 and the program

begins at 12:30 pm.

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“Texas won its redistricting fight at the Supreme Court. Now it hopes to use that win to wrap up its voter ID suit.”

Texas Tribune:

Two days after the U.S. Supreme Court ruled that Texas lawmakers did not intentionally discriminate when they signed off on congressional and state House maps in 2013, the state is looking to use that victory to wrap up another case in which it’s accused of intentionally violating the voting rights of people of color.

In a motion filed Wednesday, the Texas attorney general’s office asked U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider her findings that the state’s voter ID law was enacted to purposefully discriminate against voters of color. An appellate court has already upheld the law, but — in light of the Supreme Court’s ruling — the state is now trying to convince the judge to reverse her findings of discrimination in the voter ID case in order to eliminate the possibility of a return to federal oversight of its election laws.

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