Steve Mazie on Michigan Redistricting Case

Mazie in the Economist:

A closer look at the lawsuit suggests the plaintiffs may face an uphill battle. The main Supreme Court case the challengers cite in their favour—a 1990 decision called Rutan v Republican Party of Illinois—doesn’t quite match up. The question in Rutan was whether the state government in Illinois could base its hiring and promotion decisions on baldly partisan considerations: how much applicants had contributed to the Republican Party, for example, or whether local party officials supported them. By a 5-4 vote, the Supreme Court said this kind of official discrimination against individuals based on political party was a violation of the First Amendment. Patronage systems in which hiring and promotion decisions are a function of “political affiliation or support” are “an impermissible infringement on the First Amendment rights of public employees”.

But here is the problem with relying on Rutan to strike down Michigan’s independent redistricting effort: the eligibility rules for commissioners under attack in Daunt v Benson are not based on viewpoint. They are based on activity: recent Democratic candidates and party insiders are barred from participation just as their Republican counterparts are. The disqualification is even-handed and not based on a failure to swear loyalty to any particular political party. The rules are based on the rather reasonable idea that party insiders are probably not the most impartial people to draw fair electoral lines.

Rick Hasen, an election-law expert at the University of California-Irvine, says “it would take a big change in First Amendment doctrine” for the plaintiffs in Daunt to succeed. Mr Hasen says an individual judge might buy the argument, but he is “sceptical the position will ultimately prevail”. One strong piece of evidence for this view comes in section 5 of Rucho v Common Cause, the recent decision in which the Supreme Court said federal judges are unsuited to police partisan gerrymandering.

Don’t despair, Chief Justice John Roberts wrote, as “the states…are actively addressing the issue on a number of fronts”, and “in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.


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