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Wednesday round-up

By on Jun 20, 2018 at 7:10 am

The dust continues to settle from the court’s unanimous rulings on Monday in two partisan-gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, both of which the justices sent back to the lower courts without reaching the merits. At CNN, Joan Biskupic reports that “[t]he Supreme Court’s rejection of Democrats’ challenge to districts they say were rigged on a partisan basis by Wisconsin Republicans [in Whitford] came on a 9-0 vote, but dueling opinions revealed internal conflicts and portend difficulty ahead for any future gerrymandering claim.” At The Economist’s Democracy in America blog, Steven Mazie observes that “[t]he justices have bought themselves some time, but they are unlikely to find relief from the question of how far legislatures can go in rigging elections.”  At ACS Blog, Gury-Uriel Charles maintains that “plaintiffs challenging partisan gerrymandering claims seem to have been given a reprieve to take one last shot,” and “they would be wise to follow the path laid out for them by Justice Kagan, as she’s their only hope.” Additional commentary and analysis come from Justin Levitt in an op-ed for The Washington Post, Richard Pildes in an op-ed for The New York Times, Mark Joseph Stern at Slate, Vann Newkirk at The Atlantic, Eric Segal in an op-ed for NBC News, Galen Druke at FiveThirtyEight, Carolyn Shapiro in an op-ed at The Hill, Thomas Mann at Brookings, Medium’s Flippable blog, Jeffrey Toobin at The New Yorker, and Walter Olson at the Cato Institute’s Cato at Liberty blog, who notes that “not a single Justice [in Whitford] backs the notion that other branches’ irresponsible failure to act on some problem can, by itself and without more, make it legitimate for courts to step in.”

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Petition of the day

By on Jun 19, 2018 at 11:53 pm

The petition of the day is:


Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred when it reversed the district court’s confirmation and enforcement of the arbitrator’s award pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and former counsel to the Assistant Attorney General for Civil Rights at the Justice Department. He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

Election lawyers, state legislators and political junkies were surely all disappointed on June 18 when the Supreme Court, in a unanimous opinion authored by Chief Justice John Roberts, avoided deciding whether partisan gerrymandering violates the Constitution. Instead, it sent the Gill v. Whitford case arising out of Wisconsin back to the lower court, holding that the plaintiffs had failed to demonstrate Article III standing because they had not shown any specific, individual injury to their right to vote.

The Supreme Court also issued a per curiam opinion in a similar case out of Maryland. In Benisek v. Lamone, the court held that the district court had not abused its discretion in denying a preliminary injunction to the plaintiffs while awaiting the court’s decision in Gill.

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Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU Law School.

The Supreme Court has struggled between seeing itself as an institution that only vindicates individual rights and as one that vindicates, at times, more structural or group-based interests. Partisan gerrymandering or vote dilution is obviously intended to advantage or disadvantage adherents of one political party. This is intrinsically a group-based injury, as are all vote-dilution injuries.

In the racial-vote-dilution context under the 14th Amendment, for example, the Supreme Court recognized from its earliest cases, including 1973’s White v. Regester, that the constitutional injury occurs when districts are designed “to cancel out or minimize the voting strength of racial groups.” Similarly, when the court drew on the racial-vote-dilution cases to hold for the first time, in 1986’s Davis v. Bandemer, that partisan vote dilution could also violate the 14th Amendment, the court recognized that “the question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process.” It makes no sense, either practically or conceptually, to “dilute” the vote of any individual voter in isolation. Vote dilution, whether racial or partisan, is about diminishing the overall political power of groups as groups, compared to the power those groups would have in a lawful plan.

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John Phillippe is chief counsel at the Republican National Committee, which filed an amicus brief in support of the Wisconsin in Gill v. Whitford.

It is difficult to see the Supreme Court’s decisions in Gill v. Whitford and Benisek v. Lamone together as anything but a significant setback for those who would have the courts wade even further into the legislative process of redistricting. Although early commentary suggests that the court “punted” or “sidestepped” the merits of the cases, in actuality the two decisions erected substantive barriers to political gerrymandering claims.

The Gill plaintiffs had hoped to convince the Supreme Court to adopt for the first time a constitutional standard for invalidating redistricting plans based on what they deemed excessive partisanship. Instead, the court unanimously rejected several theories advocated by the plaintiffs and supportive amici, thereby cutting off multiple paths toward a new constitutional doctrine, with significant implications for future plaintiffs.

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On July 19 from 6 p.m. to 8 p.m. in Washington, D.C., the American Society on International Law will host a panel entitled, “U.S. Supreme Court ‘International Law’ Year in Review.” Panelists include John B. Bellinger III, Harold Hongju Koh, Donald Earl Childress III and Jessica Ellsworth; the panel will be moderated by Charles Kotuby and Jennifer Permesly. More information, including instructions on how to register, is available here.


Yesterday, in Chavez-Meza v. United States, the Supreme Court resolved a circuit split regarding whether the district court must give an explanation at all for its decision in a sentencing-modification proceeding pursuant to 18 U.S.C. § 3582(c)(2), and, if so, how full the explanation must be. In short, the judge must provide an explanation, but the current boilerplate form will generally suffice.

Adaucto Chavez-Meza, a convicted meth dealer, petitioned the federal judge who sentenced him to 135 months in prison to modify that sentence after the Sentencing Commission retroactively amended the federal sentencing guidelines to reduce the base offense level for all drug offenses. Under this amendment, Chavez-Meza’s sentencing range became 108 to 135 months, rather than 135 to 168 months. The district judge signed a two-page standard form statement called an “AO-247” and reduced the sentence to 114 months — a significant decrease, but short of the requested reduction to 108 months. The U.S. Court of Appeals for the 10th Circuit affirmed without demanding further explanation of why the original sentence was at the very bottom of the range, but the modified sentence edged a bit closer to the middle.

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However the Supreme Court decides the travel ban case in the next 10 days, it may well avoid taking a position on one of the numerous issues raised in that litigation — whether the district court in Trump v. Hawaii lacked the authority to issue a nationwide injunction. But the justices may not be able to duck the broader debate over the propriety of nationwide injunctions for much longer, thanks to an unusual application for a “partial” stay filed by Solicitor General Noel Francisco on Monday in Sessions v. City of Chicago.

The City of Chicago case is one of several pending challenges to actions taken by Attorney General Jeff Sessions under Executive Order 13,768, which provides that certain “sanctuary jurisdictions” that refused to comply with some immigration enforcement measures would not be “eligible to receive Federal grants, except as deemed necessary for law enforcement purposes” by the attorney general or secretary of Homeland Security. As relevant here, the city of Chicago sued challenging conditions that the attorney general subsequently imposed under the executive order on receipt of funds under the Edward Byrne Memorial Justice Assistance Grant Program, claiming that they were both unlawful and unconstitutional.

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Theresa J. Lee and Emily Rong Zhang are attorneys with the Voting Rights Project of the American Civil Liberties Union, which filed amicus briefs supporting the challengers in Gill v. Whitford and Benisek v. Lamone.

The Supreme Court declined the opportunity offered by Gill v. Whitford and Benisek v. Lamone to clearly draw the line marking when partisan gerrymandering is so extreme that it violates voters’ constitutional rights. But, just as in football, perhaps certain things can still be achieved with a punt. Nearly as soon as probable jurisdiction was noted in Gill and Benisek, commentators began prognosticating whether the court would identify the long-sought manageable standard to determine when such gerrymandering violates the Constitution or would punt, that is, dismiss the cases on standing or procedural grounds. Though many things surrounding partisan gerrymandering remain opaque, the two decisions do leave markers on the trail for litigants.

Although both cases missed opportunities to strike down extreme gerrymanders, the opinions did articulate contributions to partisan-gerrymandering doctrine and standards for litigation practice. Recall that even in previous decisions in which the Supreme Court declined to strike down partisan gerrymanders, it nevertheless offered principles that began to shape the doctrine — principles on which the litigants in Gill and Benisek themselves relied. In Davis v. Bandemer, for example, the court made clear that the lack of proportional representation is not a sufficient basis for a partisan-gerrymandering claim. And in Vieth v. Jubelirer, it set out the structure of partisan-gerrymandering claims as one that requires both intent and effect. In Gill, the plaintiffs made clear that the efficiency gap – a measure of partisan advantage that calculates “wasted” votes — is not predicated on proportional representation, and they presented a theory of partisan discrimination comprising both intent and effect.

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David H. Gans is the director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, which filed an amicus brief for current and former members of Congress in support of the challengers in Gill v. Whitford and Benisek v. Lamone.

Partisan gerrymandering is a cancer on our democracy. Under our Constitution, states cannot rig the electoral process to entrench the governing party in power. Voters choose their elected representatives, not the other way around.

Unfortunately, in a pair of disappointing rulings, the U.S. Supreme Court ducked a major constitutional showdown over partisan gerrymandering, missing a valuable opportunity to make clear that the Constitution does not permit state legislatures to draw district lines to subordinate voters because of the political party they are affiliated with. In a pair of unanimous opinions yesterday in Gill v. Whitford and Benisek v. Lamone, the justices returned the cases to the lower courts for further proceedings. The justices did not resolve the huge constitutional questions at the core of these cases, disposing of both of them on narrow grounds, while leaving the merits for another day.

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