Elena Kagan's Blueprint to End Partisan Gerrymandering: North Carolina Paid Attention

[ehrnst]

The U.S. Supreme Court’s decision in 2019’s Rucho v. Common Cause was a painful setback for voting rights advocates. By a 5–4 vote, SCOTUS slammed the federal courthouse door on partisan gerrymandering claims, ruling that they cannot be brought under the U.S. Constitution. But Rucho had a silver lining in Justice Elena Kagan’s powerful dissent, which showed state judges how to kill off the practice under their own constitutions. Her dissent served as a blueprint for the North Carolina court that invalidated the state’s legislative gerrymander on Tuesday. That decision charts a path forward for opponents of political redistricting. Every state constitution protects the right to vote or participate equally in elections, and state courts can take up Kagan’s call to arms to enforce those protections under state law.

The brilliance of Kagan’s dissent lay in its clarity: She laid out the precise harms inflicted by partisan gerrymandering and explained how they can be measured and remedied. Kagan identified two distinct but intertwined constitutional violations: Warped maps “reduce the weight of certain citizens’ votes,” depriving them of the ability to participate equally in elections; they also punish voters for their political expression and association. These dual injuries, Kagan concluded, implicate fundamental principles of both equal protection and freedom of speech.

After castigating her conservative colleagues for minimizing these harms, Kagan illustrated the ease with which courts can address them. In his Rucho opinion, Chief Justice John Roberts insisted that federal courts were unable to determine when a partisan gerrymander goes “too far.” Kagan pointed out that, in fact, plenty of lower courts have already done exactly that. These courts deployed a three-part test. First, they ask whether mapmakers intended to entrench their party’s power by diluting votes for their opponents. Second, they ask whether the scheme succeeded. Third, they ask if mapmakers have any legitimate, nonpartisan explanation for their machinations. If they do not, the gerrymander must be tossed out.

https://slate.com/news-and-politics/2019/09/partisan-gerrymander-kagan-state-courts.html

[ananda]

1. Excellent article!

I have shared this with others.

Thank you!

[bucolic_frolic]

2. Kagan's dissent was most powerful, and perhaps the most effective dissent, ever

I also understand Roberts' reluctance to take up the matter of gerrymandering. Prior to Kagan's clear criteria it would be a reasonable assumption that the federal courts would be clogged with an unending series of suits brought by one side or the other. I suspect that once Kagan's criteria are met by a number of state Supreme Courts, any laggard states will again be sued into federal court which will find a way to revisit the Roberts' Court ruling. Kagan's dissent is powerful medicine indeed.

[KPN]

13. Doesn't it ultimately depend on the makeup

of State supreme courts, just like the SCOTUS?

[bucolic_frolic]

15. Probably, but

partisan bias at the state Supreme Court level is likely greater than at the US Supreme Court because they rule on issues that most affect the state and its locales. So public opinion matters a little more at the state level.

[usaf-vet]

18. Sadly I think that is true. In Wisconsin the State Supreme Court has been stacked by Walker w/ Koch$

Kagan's dissent doesn't stand a chance of being fairly heard in Wisconsin.

Kagan pointed out that, in fact, plenty of lower courts have already done exactly that. These courts deployed a three-part test. First, they ask whether mapmakers intended to entrench their party’s power by diluting votes for their opponents. Second, they ask whether the scheme succeeded. Third, they ask if mapmakers have any legitimate, nonpartisan explanation for their machinations. If they do not, the gerrymander must be tossed out.

On this point alone: "mapmakers intended to entrench their party’s power by diluting votes for their opponents."

Wisconsin Republican legislators hired a private law firm to assist in the map drawing. All of the processes took place in their private offices WITHOUT a single Democratic legislator allowed to participate.

1. it is clear that Kagan's first test proves their intent.
2. yes, it worked as planned.
3. who can you ask if the Supreme Court in the State is stacked?

IMO Kagan's three-point test needs a fourth step.

4. Can the dissenter within the state fine a FAIR arbitrator to hear their case?
Answer NO. That leaves SCOTUS. To toss out Wisconsin gerrymandering using Kagan's 3 step dissent.

Wisconsin will likely not on its own remove the gerrymandering for years to come if ever. WITHOUT SCOTUS.

[lark]

3. Roberts' is nothing but a rw Russian Repug stooge.

He pretends to care about the constitution, but it's at least 99% a lie. He cares about the rw rich and no one else and will even writes Op-Eds to try to cover up the egregious unconstitutional partisan slant of SCOTUS.

[mountain grammy]

12. Agree!

[FakeNoose]

4. Gerrymandering needs to be fixed in each state individually

It starts in each state, and it has to be ended by that state and none other. SCOTUS has shown that it won't interfere and Justice Kagan gave as much help as she was allowed. Now it's up to the states, and North Carolina has learned well.

[BlueMississippi]

5. A very good article

I am impressed by Elena Kagan's extremely astute opinion.

[benld74]

6. I recall reading about that SCOTUS case

Being ticked off at the verdict
Knowing why it was done
Roberts proving once again he’s a ambulance chaser lawyer
Nodding with a double thumbs up the Kagan dissent

[Johnny2X2X]

7. Dems need their own ALEC

It's time to unify and press forward common causes in the states.

[Cosmocat]

9. Y E P

And, an aggressive policy strategy based organization,

[Pepsidog]

11. Excellent idea.

[3Hotdogs]

14. That's true. But who would fund it to the degree that corporations fund ALEC?

[JudyM]

8. Good post. Resistance leadership lesson.

[dlk]

10. Wonderful Article!

It gives me hope there is a viable solution through the courts to counter the widespread Republican conspiracy to steal elections. They are thoroughly corrupt and unfit to govern. Yet, Obama’s legacy, this time with his appointment of Justice Kagan, keeps shining through.

[Wawannabe]

16. TU

Justice Kagan!

[gratuitous]

17. Roberts is a nincompoop

When his Court first struck down Section 5 of the Voting Rights Act* Justice Ginsburg took the majority to task, saying that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." I knew at the time, and subsequent events bore out my prediction that it would open a whole new era of Jim Crow-style disenfranchisement of certain segments of the electorate. Case after case went to the Supreme Court to rule that illegal restrictions of the franchise by states were, well, illegal. But of course, before the Court ruled what Republicans had done was unconstitutional, an election or two was held that further solidified Republican majorities in legislatures and state houses across the country. At which point, those freshly-elected majorities would go back and draft more unconstitutional legislation to keep citizens they didn't want to vote away from the polls.

I knew that Roberts would get tired of playing the game he started with the Shelby County decision, probably sooner rather than later. Sure enough, in this year's Rucho decision, Roberts announced that he no longer wanted to spend all the Court's time haring after Republican franchise fucking. Having set ablaze the preclearance regime instituted by Section 5, Roberts then walked away from the dumpster fire he lit. Because he's an asshole.