Gerrymandering Power On The Line: Ballots and Limits (correct)

Unresolved legal issues could fundamentally alter the ground rules of redistricting for decades to come.

Federal lawsuits from North Carolina, Alabama and Arkansas test limits of voting rights law, limits of state governmental authority and capacity of voting rights groups to file racial gerrymandering cases.

Taken together, the cases could provide a nearly complete shield for state legislatures determined to gain maximum partisan advantage in the next round of redistricting, said electoral law scholar Franita Tolson of the University of Gould Law School. Southern California.

“These doctrines and approaches in these cases fundamentally reset the rules of the game,” she said. “In 2030, we will be living in a completely different world than we lived in in 2020, and 2020 has not been favorable to minority voters at all.”

Here’s a quick walk through the basics:

Legal theory: Doctrine of the Independent State Legislature

why is it important: The U.S. Supreme Court could give state legislatures the ultimate power to redraw congressional lines, potentially nullifying independent redistricting commissions.

State courts could be blocked from redrawing maps that violate state constitutional protections against partisan gerrymandering, said Jason Marisam, a professor at the Mitchell Hamline School of Law in St. Paul, Minnesota.
“We’re one decision away from a partisan ‘Wild, Wild West’ way of gerrymandering,” Marisam said.

Four justices said they would consider adopting the “independent state legislature” theory in some form, raising the possibility that states with single-party legislative control could legally remove the minority ruling party.

Where he is: The United States Supreme Court plans to take the case in the next quarter.

Legal theory: Voting Rights Act test conflicts with 14th Amendment

why is it important: Map-drawing legislatures could view race-neutral criteria, such as compactness or shrinking county divisions, as more important than consideration of racial impact, hampering cases under the Article 2 of the Voting Rights Act.

“If Alabama’s legal arguments were accepted in full, it could certainly reduce lawsuits, making it much more difficult for plaintiffs to win under an already difficult standard for plaintiffs,” Davin Rosborough said. , senior counsel for the American Civil Liberties Union’s Voting Rights Project.

The opposing argument is that states revising congressional district lines should not take race into account when it is not necessary.

Where he is: The Supreme Court of the United States suspended the case, and a lower court order establishing a second majority black district was stayed in the 2022 cycle. Arguments are set for October.

Legal theory: No “private right of action” under the Voting Rights Act, Section 2

why is it important: Most racial gerrymandering claims are filed by voting rights groups on behalf of minority voters. The Eighth Circuit Court of Appeals is being asked to rule that only the United States Attorney General could bring suits under the Voting Rights Act alleging discriminatory effects of district lines.

Enforcement would be at the discretion of the president, who might not be inclined to bring cases that would hurt his party or take resources away from other priorities.

Fourteen Republican state attorneys general have filed a friend of the court brief arguing that voting rights litigation interferes with states’ ability to pay for voting rights programs.

The opposing view: “Allowing private parties to redress suffrage violations through the courts is a really important mechanism for eradicating racial discrimination in voting,” said Jeffrey Justman, partner at Faegre Drinker Biddle & Reath LLP, representing a group of former legislators. and aides involved in the 1982 Voting Rights Act. His bipartisan group also filed a friend of the court brief.

Where he is: While some courts have found a private right is “implicit” in the statute, a federal district court ruled in February that the NAACP could not bring a lawsuit alleging racial discrimination on the Congressional map of the Arkansas because no private rights are mentioned in the statute. legislation. Appealing that decision in the Eighth Circuit could raise the issue in the U.S. Supreme Court, where Justices Neil Gorsuch and Clarence Thomas questioned whether private parties could bring the cases.

For the last, set up BGOV or BLAW alerts on: Moore v. HarperUS, No. 21-1271, Merrill vs. CasterUS, No. 21-1087 and Arkansas State Conference NAACP vs. AR Board of Dispatch, 8th Cir., no. 22-1395. — Alex Ebert

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Redistricting News

FLORIDA: OFFICIALLY REVERSED
A state appeals court has formally overturned a lower court’s temporary injunction blocking a congressional redistricting plan crafted by the Florida governor’s office.

This order, replacing the map approved by Governor Ron DeSantis (R) with a map preserving a minority access district in North Florida, “is unlawful on its face”, according to the Court of Appeals decision of Florida’s First District. The trial court went too far in issuing an injunction that, without a trial, required congressional elections to be held under a new plan, he said.

The card DeSantis seeks is being used in this year’s midterm elections, amid ongoing litigation in state and federal courts. — Jennifer Kay

KANSAS: GERRY MANDERING OK
The Kansas Supreme Court said the state constitution does not prohibit partisan gerrymandering, elaborating on its 4–3 decision to approve a new congressional map. The new map makes it harder for the only Democrat in Kansas’ congressional delegation, the two-term representative. Sharice Davids, for re-election in her Kansas City-area district. (The Associated Press)

Voting initiatives

MASSACHUSETTS: TAX ON THE FORTE
Massachusetts got the green light to ask voters if millionaires should pay higher taxes. The question will appear on the November ballot after the state High Court approves the attorney general’s summary of the ballot question.

This is the sixth attempt to amend the state constitution to allow for graduated income taxation; voters rejected the top five. — Perry Cooper

CALIFORNIA: THIRD TEST
We’ll be watching how much more money will be spent on a third attempt to get voters to change the way dialysis clinics are regulated.

The 2018 and 2020 attempts rank among the most expensive ballot initiative battles in California history. Opponents, funded by providers Davita Inc. and Fresenius Medical Care North America, Inc., raised $111.5 million in 2018 and supporters raised $20.9 million. Two years later, the “no” campaign raised $105.3 million and the “yes” campaign $9 million.

The initiative will be on the November 8 ballot. — Tiffany Stecker

See also: California dialysis crackdown returns to 2022 ballot

FLORIDA: COURT DISMISSAL
A federal judge has permanently blocked a 2021 Florida law capping individual contributions to political committees sponsoring state ballot initiatives.

A preliminary injunction last summer prevented the law (SB 1890), which set a limit of $3,000, from going into effect.

In a new order, U.S. District Judge Allen Winsor also blocked legislation that was set to take effect July 1. The second law (HB 921) would have limited the $3,000 cap to out-of-state contributors. “In fact, the amendment undermines the stated interest in preventing fraud,” Winsor said in his order. — Jennifer Kay

See also: Judge blocks Florida law limiting contributions to questions on ballots

Election law

NEW YORK: FRAUD PROBE
The FBI is investigating potential mail-in ballot fraud in Rensselaer County, NY, the Albany Times-Union reports. Employees of the Republican Board of Elections were subpoenaed to testify before a federal grand jury, according to the report.

The investigation comes after the state passed the John R. Lewis Voting Rights Act this week, prohibiting the dilution, suppression, intimidation and obstruction of voters, and making it easier to sue for rights violations. of voting. The new law also requires jurisdictions with a history of civil or voting rights violations to obtain prior approval from the civil rights office of the state attorney general’s office to change election policies and practices. — Keshia Clukey

WISCONSIN: OUTRAGE
What started as an exercise in partisan copying, with the Republican-controlled Wisconsin legislature hiring an outsider to check the validity of the 2020 presidential election result, has now become something else entirely.

The contractor, a former state Supreme Court justice, was found in contempt of court. Michael Gableman is being fined $2,000 a day and Wisconsin Circuit Court Judge Frank Remington has sent a transcript of the contempt hearing to the Wisconsin Office of Lawyer Regulation for review. Gableman’s license should be revoked.

Gableman ignored an order to turn over public documents regarding his investigation to American Oversight, a government watchdog group. The judge also criticized Gableman’s “disruptive conduct” during the hearing, including disparaging remarks about a female attorney. — Stephen Joyce

Resources

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To contact the reporters on this story: Alex Ebert in Madison, Wisconsin at [email protected]; Jennifer Kay in Miami at [email protected]; Tiffany Stecker in Sacramento, California at [email protected]; Stephen Joyce in Chicago at [email protected]; Keshia Clukey in Albany, NY at [email protected]

To contact the editors responsible for this story: tina may at [email protected]; Katherine Rizo at [email protected]

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