Rick Hasen analyzes the possibilities at "BREAKING: Divided Three Judge Court Holds North Carolina Congressional Redistricting an Unconstitutional Partisan Gerrymander, Considers New Districts for 2018 Elections":
The court has opened the possibility of giving the state the chance to draw new maps, or maybe appointing a special master, all in line with the idea of replacing the districts with cured districts in time for the 2018 elections, where primaries have already been held...Imagine running for Congress and at this late stage, not knowing where the lines around your district are? Imagine being a voter and not knowing which set of candidates is the one that relates to you? What if you've given money and time to a campaign that you now don't know is even your district? What if you've worked on convincing fellow citizens to vote for your candidate and now you don't know if they were the right ones to talk to — you should have been debating with somebody else... and you're still not sure who? I think even the possibility that the lines will be drawn before the coming election is unfair to the candidates and the citizens who've taken an interest in them. Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.
A few weeks ago, I thought of writing a piece for Slate arguing that now would be the perfect time for the three-judge court to act in this case, because the Court is divided 4-4 and in that case the lower court ruling would stand. But given that primaries are done, and ballots needing to be printed very soon, I thought it would be too late for a lower court to try it.
And it could be that if [the lawyer for the state legislature Paul] Clement goes to SCOTUS, Justices Breyer and Kagan could agree that it is too late and agree on an order to delay this until the Court can consider the issue as a whole next term and before the 2020 elections....
But if the lower court orders new districts for 2018, and the Supreme Court deadlocks 4-4 on an emergency request to overturn that order, we could have new districts for 2018 only, and that could help Democrats retake control of the U.S. House.
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69 comments:
Lefties are hoping they will get to redraw the districts after the voting and the tally but before the winner is declared and certified.
our Professor says Obviously, the Supreme Court should immediately stay the 3-judge court's order
That would be correct, IF the supreme court was a court of law; not politics. we shall see
Job One for a new Kennedy-less Supreme Court: reverse the 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commisssion.
Just reverse it. Say that it was bad law, a bad idea, inconsistent with the clear, plain meaning of the Elections Clause, and that the 5-4 majority got it wrong.
We will be able to get away and as a nation say that we only lived for three years with that legal error.
Oh, and if some folks are unhappy with the Elections Clause; knock yourself out and go get yourselves a Constitutional Amendment.
Confusion is the goal of the enemies of the US, which includes a majority of Democrats and Liberals these days.
Jesus, who were the three judges, Larry, Moe and Curly?
Althouse, you didn't take the next step in discussing this story, which I will now do...
The mere fact that the (2-judge majority of the) special federal 3-judge panel is willing to engage in an order creating this kind of procedural chaos ought to cause all of us to wonder about their sanity and judgment in the substantive part of their ruling on the merits.
I'd like to see a different approach to redistricting that eliminates the strange creations that exist mostly to please identity politics the bean counters and protectionist insiders. But it shouldn't be done piecemeal by judges and, like congressional raises, it should never go into effect until after the next election.
If they're gonna redistrict NC for partisan gerrymandering by the midterms, they have to redistrict MD and CA too.
Here's the Democrat left playbook:
1. Win elections
2. If not 1, cheat
3. If not 2, sue
If there was any doubt, the Federal Judiciary is fully engaged in the "Resistance".
Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.
Surprising to me sometimes how poorly a Con Law professor understands the Supreme Court in the 21st century.
Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.
Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.
A stay would not help elect Dems. Liberal judges focus on outcome only.
The people who are damaged by the tyrannical judges are the people. But who are they anyway.
Three judge panel believes its politics are better than others politics.
News at 6 and 11.
The big problem with judges doing politics is they usually cannot see the ramifications.
If judges were faced with voters, they might see that many swing voters will see this for what it is.
The judges do not face re-election so they don't get to hear from disgruntled constituents.
So the power and influence of the court system is diminished and regular people are upset by what they observe.
Inevitably, this is how you get more Trump.
Wynn, appointed by Obama. Britt, appointed by Carter. Osteen, appointed by W. 2-1 decision, Obama & Carter vs. W.
Ann, seriously, you really believe that all 8 Supreme Court justices will agree to stay this decision? What world are you in?
Hell, imagine you're a candidate and you get redistricted out of the district you are running in, so one district has 2, say, Dems or GOPs, and an adjacent district has none.
brylun said...
Wynn, appointed by Obama. Britt, appointed by Carter. Osteen, appointed by W. 2-1 decision, Obama & Carter vs. W.
Ann, seriously, you really believe that all 8 Supreme Court justices will agree to stay this decision? What world are you in?
She said should, not would.
"All 8 Justices should agree."
Kagan might. Ginsburg and Sotomayor no way.
Nonplussed Ann stands strong here in support of unconstitutional partisan gerrymandering because she's worried about confusion among candidates and voters. She seems to imagine that voters will cast their ballots based on the lines of their congressional district, rather than for whatever candidate they support. Ann, the redrawing of the lines is meant to ameliorate racial biases that favor Republicans to the degree that 10 of the 13 seats are safe Republican. Way to go Ann, stand strong for racial biases and partisan gerrymandering. The tribe loves that. Good grief.
Oooh, and watch out, elite Trump haters. The deplorables are coming to get you.
I was at the temple the other day, and cleared a Race Level 7, Bias Level 5, and a Phobia Level 9.
A Race Level 7?!?!
I recited Aretha Franklin lyrics from memory on the Rotunda and spontaneously in The Pit.
Screw the new Tolerance Ministers and screw the Science Brigade.
Someone else will scream when we're forced to get rid of the majority black districts, a major cause of this mess, which first started in the GHWB administration.
There wil now be five votes to declare racial gerrymandering unconstitutional
I am looking at the district map and it looks like actual districts to my eye. Nothing like a district following a highway to create an isthumus two lanes wide to connect two separate population centers.
I am not the expert here, but given that these political boundaries are made my a political body, are not they supposed to be political in nature?
How soon can Kavanaugh be confirmed and start having a say?
BigMike wrote:
Surprising to me sometimes how poorly a Con Law professor understands the Supreme Court in the 21st century.
You don't give Ms. Althouse enough credit- she used the word should, not will. She would not be a bit surprised if SCOTUS split 4-4 denying a stay in effect.
It will be interesting to see how far Pickering and his friends will go to seize the house.
But what would they do if they got it?
They have no where to go. If they win the house they will lose epically in 2020.
If they lose the house they will watch as their leaders go to jail.
We will never find out though. Trump is prepping the battle field for November. Ohr is up for humiliation. Whistle blowers are being sent out now explaining what the FBI was doing.
The indictments are on the way.
John Pickering,
Apparently you are unaware that the Supreme Court mandated majority-minority districts in states that do not have Pre-Clearance with the Justice Department. Therefore, the state house in NC is under an obligation to group people based on race. And once those 95% Democrat voters are so grouped, along with 60-40 white voters, the district is wildly Democrat.
Thus, many Democrats are removed from adjacent districts under the SCOTUS decision, leaving many more Republicans in all other districts.
Now, the SCOTUS decision was made when Democrats controlled most Southern state houses. So maybe they can be excused for being Democrats who were unable to recognize the effects of their own rulings - the dumb bastards.
But it is a SCOTUS decision with which these district court judges are fighting. And only one of them can do basic arithmetic, such is the state of legal training these days.
I think even the possibility that the lines will be drawn before the coming election is unfair to the candidates and the citizens who've taken an interest in them. Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.
And what message does that send the legislature? If you want to pass an unconstitutional redistricting, just wait until the courts won't have enough time to override the new districts.
And now Freder Frederson enters the fray with another nonsensical post.
How can the legislature get thru Pre-Clearance with the Justice Department without following SCOTUS precedent that demands minority-majority districts?
Show the math that would allow your complaint (politics) to be squared with SCOTUS precedent (race).
With technology they can do this fast.
And readering brings the stupid.
"How can the legislature get thru Pre-Clearance with the Justice Department without following SCOTUS precedent that demands minority-majority districts?
Show the math that would allow your complaint (politics) to be squared with SCOTUS precedent (race)."
I agree with "name goes here"; the 2018 NC map looks a lot less like gerrymandering than the 2008 map. Only district 4 looks disjointed, but less so. And district 12 and 9 look much more like a geometric shape than previously. The 1998 map looks horrible and whoever was involved in drawing it up should be ashamed of themselves.
"The mere fact that the (2-judge majority of the) special federal 3-judge panel is willing to engage in an order creating this kind of procedural chaos ought to cause all of us to wonder about their sanity and judgment in the substantive part of their ruling on the merits."
Correct. And hating Trump will get you more such judges.
Sebastian said...
"The mere fact that the (2-judge majority of the) special federal 3-judge panel is willing to engage in an order creating this kind of procedural chaos ought to cause all of us to wonder about their sanity and judgment in the substantive part of their ruling on the merits."
Correct. And hating Trump will get you more such judges.
The hypothetical impeachment of Trump because he, for instance, is guilty of New York and federal financial crimes, does not = President Kamala Harris. Impeached Trump = President Pence.
Any good Republican can nominate good federal judges. Especially so, in an era where the confirmation filibuster is gone.
I have a question. the court has ordered a re-design of the districts before the election. So doesn't the same R-controlled legislature design a new map? It may favor the Rs as much as the previous one, and it would be submitted to the court too late for a re-do. Is this correct?
How can the legislature get thru Pre-Clearance with the Justice Department without following SCOTUS precedent that demands minority-majority districts?
That is not Althouse's point. She is concerned about the disruption so close to the election. I do not know enough about this case to determine if the districts are unconstitutional, but Althouse's solution invites fuckery by the legislature.
"Impeached Trump = President Pence."
Ah, yes, and President Pence will then sweep the midwest, as all the deplorables will turn out in droves for the party that helped to oust the president of their choice.
Look, if you want Republican policies and conservative judges, Trump is it for the near future. Insane Trump hatred will get you less Republican policies and fewer conservative judges.
The choice for NeverTrumpers is whether they value their own good taste more than their professed political preferences.
"A few weeks ago, I thought of writing a piece for Slate arguing that now would be the perfect time for the three-judge court to act in this case, because the Court is divided 4-4 and in that case the lower court ruling would stand. But given that primaries are done, and ballots needing to be printed very soon, I thought it would be too late for a lower court to try it."
Imagine being such a morally vile weasel that you would encourage a judge to undertake entirely unconstitutional actions, simply because you think that you have a temporary chance of getting way with it.
If anyone ever thought Rick Hasen is anything other than a partisan hack, this should clearly disprove such thoughts
Well, yeah, ordering new districts after the primaries are over followed by half-assed brainstorming on how to make that work with only two months to go... that's extremely irresponsible.
I don't think Breyer can tolerate this. He might agree that the districts are unconstitutional, but not agree to forcing redistricting for this election cycle.
So, last I checked, the States run elections, per the Constitution. How does a federal court get to decide these things (even along the lines of "pick a, b or c")?
All 8 Justices should agree.
But they won't.
John Pickering said...
Nonplussed Ann stands strong here in support of unconstitutional partisan gerrymandering
1: There is no such thing as an "unconstitutional partisan gerrymander." There are unconstitutional racial gerrymanders.
But Democrats do not have some special right to have the districts drawn so that their desire to live in left wing bubbles doesn't harm their political results.
The Supreme Court had a chance to make partisan gerrymandering unconstitutional back in the 80s - 90s, when the Democrats were the main ones doing it.
The Left and The Democrats successfully fought to block that. Now you get it, good and hard.
Enjoy!
The judiciary in Pennsylvania pulled the same stunt and re-drew the district lines which I think was an unconstitutional and illegal act.
Readering says with computers, the NC folks can re-draw the districts fast...yeah and without screwups you know like the Obama admin did with the Obamacare implementation for which they had like 3 years to do.
And if they re-draw the districts, dont they have to redo the primary elections? Or else how do you decide who the general election candidates are?
Freder Frederson:
It is easier to simply admit you know fuck-all about Supreme Court precedent that two of the three judges ignored.
Freder Frederson said...
...but Althouse's solution invites fuckery by the legislature.
Per the 10th Amendment, fuckery is neither a power delegated to the United States by the Constitution, nor prohibited by it to the states. Thus, fuckery is reserved to the states, or to the people.
I live in NC, so what these judges are trying to do would likely deprive me and my fellow North Carolinians of our right to elect our Congresspersons come November. Seems to me that's worse than letting us vote in "faulty" districts.
It is easier to simply admit you know fuck-all about Supreme Court precedent that two of the three judges ignored.
If this was the subject of the post you would be correct. But it isn't. Althouse doesn't address whether the case was wrongly decided or not, she just believes, right or wrong, the stay should be lifted because it is too close to the election to change district.
Focus man. My point stands.
The real flaw in the court's ruling is the notion that NC's districts reflect a "partisan gerrymander". Sure, the districting plan is partisan, but so what? Almost everything a legislature does is “partisan”, because we have political parties. Whichever party has the majority in the state legislature when it comes time to redistrict will draw the lines in its favor. The Democrats used to control the NC legislature, and they drew the lines in their own favor. Now the Republicans have the majority. There's no law against it. And calling it a "gerrymander" doesn't make it illegal. There’s no neutral principle that can determine whether a particular districting plan is or is not a gerrymander. A gerrymander is simply a legislative districting scheme you don't like.
Any good Republican can nominate good federal judges. Especially so, in an era where the confirmation filibuster is gone.
Assumes facts not in evidence.
Any good Republican can nominate good federal judges.
is that a tautology? Or is it a True Scotsman thingie?
The Godfather,
Under current SCOTUS precedent the decision of the panel cannot be made to make sense. Majority-minority districts necessarily remove lots of Democrats from the other districts. So all the other districts necessarily have fewer Democrats than they otherwise would.
Freder Frederson,
The fact that the panel ordered something that cannot be allowed under current precedent is the first and only issue. If they had ordered magic beans be delivered to a giant in the sky, it would make just as much sense. Math is hard, for Leftists.
Under current SCOTUS precedent the decision of the panel cannot be made to make sense. Majority-minority districts necessarily remove lots of Democrats from the other districts. So all the other districts necessarily have fewer Democrats than they otherwise would.
You are overstating what the SCOTUS precedent is. Majority-minority districts can be so packed with Democrats that they actually lose seats that would be won with more rationally drawn (even majority-minority districts). The math isn't hard.
SCOTUS has not definitively ruled on whether partisan gerrymandering can, under certain circumstances, be unconstitutional. If your contention that this decision was wrong on its face, the SCOTUS would have overturned it, not kicked it back to the lower court.
The fact that the panel ordered something that cannot be allowed under current precedent is the first and only issue.
Not according to the original post. Ann didn't even contend that the court was wrong, just that they shouldn't do this so close to the election.
The Supreme Court requires majority minority districts.
Minority majority districts require an over sampling of Democrats.
Period.
Your strong desire otherwise is of no effect.
I really didn't want to have to do the math, but apparently you can't conceive of how this might work to disadvantage one party over the other.
You need to make three districts from a population of 10,000 people. The breakdown in the population is 6000 Democrat and 4000 Republican. The obvious and fairest districts would be to split it into three districts with a 60/40 Democrat/Republican split. Or maybe two majority Democrat districts and one majority Republican. But lets apply extreme gerrymandering and cram 3000 Democrats into one district and make the other two districts have 1500 Democrats and 1667 Republicans each. You have now turned a minority into a majority in the legislature.
Whoops, the Republican districts would have 1836 or 1837 Republicans each.
Math is hard.
Blacks vote for Democrats between 90 and 95% of the time. To have a majority minority district there must be 50% +1 blacks. If “not black” makes up the 50% -1 of the rest of the population and would be 60-40 Republican...
That means the majority minority district HAS TO BE 70% Democrat voters!!
And the other districts that would have been 52-48 Republican will necessarily be 57-43 districts.
That’s the fucking math. And it won’t bend to your stupidity or your partisanship.
And I was working from 14 districts and the voting pattern of NC.
I used 14% black but the actual number is 22% so the numbers are even worse against you.
You know, the fucking facts, and not your made up bull shit.
That means the majority minority district HAS TO BE 70% Democrat voters!!
Only if the minority population is less than 50% of the total Democratic voters. You are inserting restrictions that are not necessarily valid or reasonable. And I bet in North Carolina, Black Democrats outnumber white ones. They certainly do in Louisiana where I live.
A majority minority district has to contain a fucking majority of the voters be minority.
What the fuck kind of moron are you?
It’s a majority of the district must be minority voters!
Are you really this God damned stupid?
Majority minority
Majority = 50% +1
Minority = minority
God damn, you fucking ignorant shit stain!
Blacks are 22% of the population in a 48% Democrat state.
Wrong again, you fucking ignorant waste of space.
Wrong again, you fucking ignorant waste of space.
I said I bet, which means I wasn't certain.
And can you please point to SCOTUS precedent that requires majority-minority districts, because I sure as hell can't find it.
Fucking liar.
A search for “Supreme Court minority majority districts” produces results.
Waste of fucking space.
Quit breathing, you moron.
Fucking liar.
I Googled something very similar and when no such edict by the Supreme Court showed in the results, I gave you the benefit of the doubt and requested clarification.
Then after you called me a fucking liar, I used your search. Same results as mine. Either you are the fucking liar and waste of space or your reading comprehension sucks.
There is no Supreme Court mandate requiring majority minority districts.
Yeah, there is a requirement to get preclearance from the DOJ.
It’s in SCOTUS rulings.
Majority.
Minority.
It’s the textbook definition of those words.
Purposeful ignorance is a terrible choice.
Blogger Chuck said...
Sebastian said...
"The mere fact that the (2-judge majority of the) special federal 3-judge panel is willing to engage in an order creating this kind of procedural chaos ought to cause all of us to wonder about their sanity and judgment in the substantive part of their ruling on the merits."
Correct. And hating Trump will get you more such judges.
Any good Republican can nominate good federal judges. Especially so, in an era where the confirmation filibuster is gone.
So, Chuck, who'd you vote for in 2016? Trump? Or that "good Republican" Hillary?
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