Paul Smith sounds confident
The lawyer who argued Gill v Whitford before the U.S. Supreme Court knows better to make predictions. Still, he appears optimistic that a constitutional standard to end partisan gerrymandering could be on the horizon.
In an interview with Yes magazine, Paul Smith agreed with many observers that Justice Anthony Kennedy’s vote will be the deciding factor. When Kennedy is cast in that role, Smith observed, he’s often very quiet.
“That was true in the Wisconsin case. He said nothing to me in my whole half-hour up there. So I think that it may be 4-4 with Kennedy deciding,” Smith said. “I was encouraged by the fact that Kennedy didn’t ask me any hard questions. And he asked some hard questions of the other side. While I have long ago learned that you shouldn’t make predictions, I think we have a good shot.”
A victory, Smith said, “will impose meaningful limitations on gerrymandering. The people drawing the maps after the 2020 census will know that if they draw the map too aggressively to favor one party, there is a real risk that it will be held unconstitutional by a federal court.”
If his side loses, he suggested, there would be a renewed push by citizens for change, as well as more litigation along the lines of the successful challenge in Pennsylvania, which cast partisan gerrymandering as a violation of the state’s constitution.
SCOTUS has a PA dilemma. Here are the stakes
Pennsylvania Republicans have asked the U.S. Supreme Court to block a decision by their state supreme court that invalidates the state’s congressional map. It’s not going to be easy first to get five justices to vote for a stay – or then to be convinced that the Supreme Court should stick its nose into a state constitutional debate.
Nevertheless, state Republicans have an interesting argument involving the Constitution’s Election Clause, and some analysts have suggested certain parallels with the high court’s ruling in Bush v Gore.
Lyle Denniston, one of the very best Supreme Court reporters, breaks down the arguments and what it all means on the Constitution Center’s web site.
Ordinarily, a state’s own courts have the last word on the meaning of their state’s basic document, and ordinarily the Supreme Court will respect that. But when the federal Constitution’s Elections Clause enters into the discussion, that ordinary deference may not cause the Justices to hold back. And that creates a constitutional dilemma for the Justices.
On the one hand, the Supreme Court has said previously that writing the state laws that control elections – including elections of members of Congress – is a task for the state legislature, specifically handed to those lawmakers by the Constitution as a delegation of the power that otherwise would be exercised by Congress. On the other hand, it has recognized – but not fully clarified -- that state courts have power over what the legislature does about rules for those elections.
The Pennsylvania GOP lawmakers actually do not see any dilemma. They have argued in state courts and now are arguing in the Supreme Court that the Elections Clause gives the line-drawing power over election districts to the body that makes state laws – the legislature – and since the state Supreme Court does not make laws, it has no role to play in drawing maps.
But in order for the Justices to rule that way, they would have to tell the state Supreme Court that it cannot enforce its state constitution against the legislature’s election maps no matter how seriously they contradict rights guaranteed by the state constitution.
This very likely is a dilemma of the Justices’ own making, simply because they have not said enough about what the Elections Clause means.
Read his entire piece here.
No deal – yet – in Ohio
In Ohio, there’s still no deal between legislators and redistricting reformers – despite long ongoing negotiations.
Republican leaders and the reformers have been searching for common ground to move forward on a new process for drawing Ohio’s 16 congressional districts, which could allow voters to consider a state constitutional amendment alongside May primary elections.
If these efforts fail, the Fair Districts = Free Elections movement will continue gathering signatures to put their proposal on the November ballot.
“This deal doesn’t come close to something that we’re willing to support because it doesn’t actually address gerrymandering,” said reform leader Heather Taylor-Miesle to the Columbus Dispatch.
“…the key sticking point remains — how much to restrict the ability to split counties into multiple congressional districts. Republicans have insisted that they be allowed to make multiple splits of the state’s five most populous counties, but Democrats and coalition leaders say that would leave the majority plenty of room to gerrymander districts to its benefit.”
Republicans currently have a solid hold on 12 of the state’s 16 congressional seats.
Can Democrats thread the needle in 2018?
There’s a lot of talk about the Democrats and the House, and a lot of models based on ever-fluctuating numbers from the generic House ballot.
Kyle Kondik, a terrific analyst at the University of Virginia’s Center for Politics, does the actual work of looking district by district to try and find the Democrats’ road to 218 seats.
It’s going to take several things for Democrats to pick up the 24 seats they need.
As he writes:
* “In all likelihood the Democrats will need to win similar numbers of Republican-held seats won by Hillary Clinton as well as by Donald Trump in the last presidential election.
* “It is hard to construct a Democratic majority without the party netting several seats from California, and Democrats also likely need to win at least multiple seats apiece in New Jersey, New York, and Pennsylvania.
* Open seats will help the Democrats’ cause, but Democrats are going to have to do the majority of this work by beating GOP incumbents
Kondik cautions that this is not a projection, that much can change, and that the battle for control still seems to be a coin flip. “Democrats should gain seats, but on the face of the seats currently available to flip, we’re unsure if they can net the 24 seats they need to win control.”