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Tag Archives: redistricting
One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate. The same is unfortunately true of disputes over the redistricting process. We are now almost six years into the current ten-year cycle of district lines. The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again. You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over. Unfortunately, we are not at that point yet.
This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission). This week’s decision involved the Virginia House and whether the drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment. The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race. Such a challenge focuses on particular district lines.
In this case, the challenges concerned twelve districts. The original three judge panel found that race was only the predominate reason for one of the twelve districts. In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations. While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason.
This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term. Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of “favors” by a government official will support a conviction under the statutes involved). After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term. This week was bookended by two cases of interest to the issues covered by this site. On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants. On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.
The issues in the case challenging the President’s immigration policy falls into three categories: 1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law). As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.
Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.” The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging. Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have. Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision. When multiple parties join together in a case, the case can continue as long as one of them has standing. In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court.
In several states, voters (not trusting their legislators to be able to resist “stacking the deck” when drawing congressional district boundaries) have opted to take that power away from their legislators and place it with a non-partisan commission. Today, in a 5-4 decision, the United States Supreme Court found that the U.S. Constitution gave the voters of the states the right to choose this method for drawing congressional district lines.
Today, the Supreme Court issued four opinions, leaving seven cases still pending from this year. They also announced that they will be issuing opinions on Thursday and Friday. With two more opinion days this week, there is a significant chance that the last of the opinions will be issued on Friday, but it is slightly more likely that the last one or two will come on Monday (with a slim chance of a second opinion day next week). Additionally, with today’s opinions, it is possible to make a good guess on who has which case.
From January, it is all but certain that Justice Kennedy has the Fair Housing case. That is not necessarily good for civil rights activists, but there were worse possibilities.
Today, the United States Supreme Court issued two opinions, both 5-4 decisions with the majority opinion authored by Justice Breyer, in cases involving equality issues.
The first case, Young vs. United Parcel Service, involved Title VII (precluding discrimination in employment based on race or gender). Specifically, it involved the interpretation of the Pregnancy Discrimination Act — an amendment to Title VII passed in the 1970s after the Supreme Court had originally ruled that discriminating based on the fact that an employee was pregnant or might get pregnant was not discrimination based on gender. The generally understood intent of Congress was that an employer could not discriminate against an employee simply because the employee was pregnant or might get pregnant. The particular provision at issue in the case was the requirement that employers had to treat pregnant workers the same as other workers who are similar in their ability to work or not work. The employee in this case had a medical restriction due to her pregnancy that limited the weight that she could lift. This weight limit was less than what UPS expected its drivers to be able to lift; so the employee asked for the company to accommodate her condition, but UPS refused. The employee claimed that the decision violated Title VII because UPS was willing to make that accommodation for other drivers who had a medical restriction.
The majority (by one vote) decided in favor of the employee. But rather than following the spirit of the law — requiring an accommodation unless it was unreasonable if the employer granted a similar accommodation to other workers — the majority crafted a balancing test to determine what workers are similar. Under this balancing test, the fact that an employer was willing to accept a medical restriction for other workers (for example, one who got injured on the job) would merely be one factor in determining whether the distinction that the employer makes between pregnancy and other conditions that require accommodation is based on a legitimate reasons or whether the reason given seems to be a pretext for discriminating against pregnant women.