We can’t be sure yet, but the recent decision by the U.S. Supreme Court in the North Carolina redistricting case known as Cooper v. Harris should not be the cause for celebration among Democrats, liberals, and voting rights advocates as has been depicted by the befuddled MainStream Media (MSM).
The somewhat perplexing decision, by a 5-3 vote, featured a majority yoking together the court’s four liberal justices with its most conservative, Clarence Thomas. Rookie Justice Neil Gorsuch abstained from the voting because he hadn’t heard the arguments as a member of the court.
One liberal commentator characterized Thomas’s vote this way: “Thomas’s consistency handed Democrats — and the principle of equality — a remarkable victory.” Former U.S. Attorney General Eric Holder said that Cooper v. Harris is a “watershed decision moment in the fight to end racial gerrymandering.” Ex-Michigan Democratic Party Chairman Mark Brewer opined that the high court’s decision was an “encouraging development.”
Well, maybe not. Fact is, it may be more significant that Justice Anthony Kennedy, regarded as the “swing” vote in redistricting cases that reach the high bench, sided not with the majority but with his conservative colleagues Samuel Alito and John Roberts. And Thomas’s vote should have been no surprise — over the years he has consistently opposed using race as a factor in redistricting, and that’s what Cooper v. Harris was all about, i.e., whether North Carolina Republicans “packed” African-Americans into Congressional and legislative districts in a way that advantaged the GOP and hurt Democrats. If and when the more important (for Michigan) case of Whitford v. Gill, emanating from Wisconsin, prompts a Supreme Court vote as early as next month, Thomas can be expected to side with the other conservative justices, including Gorsuch, as he has in the past. Assuming Gorsuch falls in line, that would give the Republicans a 5-4 majority victory.
Things are rapidly coming to a head in Whitford v. Gill, which has the potential to be the most important redistricting decision in a half-century. This lawsuit was decided on a 2-1 vote by a three-judge federal panel in November of last year. That decision held that the 2011 Wisconsin state Assembly redistricting map was an unconstitutional partisan gerrymander. Now that the high bench has the litigation before it, it can do one of three things: 1) Summarily affirm the three-judge panel’s decision; 2) Summarily reverse that decision; or 3) Grant a stay and accept the case for briefing and oral arguments by lawyers on both sides during the Court’s 2017-2018 term that begins on the first Monday in October, which will be Oct. 2.
Bob LaBrant, senior counsel at Lansing’s Sterling Corporation, has recently visited his native Wisconsin, dominated in state government by Republicans. LaBrant notes the State is mounting a counter-attack to overturn the 2-1 ruling in the U.S. Supreme Court. Wisconsin’s appeal presents five questions for the Court to review:
- Did the three-judge panel violate the decision in Vieth v. Jubelier (2004) when it held it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis?
- Did the three-judge panel violate Vieth when it held that the plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles, i.e., the plan is compact, contiguous, and respects political subdivision boundaries?
- Did the three-judge panel violate Vieth by adopting a watered-down version of the partisan gerrymandering test employed by the plurality in Davis v. Bandemer (1986)?
- Are the defendants entitled, at a minimum, to present additional evidence showing they would have prevailed under the panel’s test, which they announced only after the record in the case had been closed?
- Are partisan gerrymandering claims justiciable at all?Numerous briefs from amicus curiae (friendly intervenors — let’s shorten this term to the plural “amici”) have been filed that present a critique of the so-called “efficiency gap” analysis that was presented in Wisconsin for the first time as the elusive “manageable standard” that swing-vote U.S. Supreme Anthony Kennedy supposedly has been seeking since the Vieth decision.
LaBrant observes that the various Amici state categorically that the “efficiency gap” standard is inherently biased in favor of Democrats because it is a measurement of political geography. Democrats are highly concentrated in urban areas while Republicans are more widely dispersed across suburban and rural areas. Amici claim adoption of the “efficiency gap” analysis will result in bizarrely-shaped districts that the Supreme Court has rejected in racial gerrymandering cases in the past.
Amici claim that the “efficiency gap” test will conflict with majority-minority districts as a remedy under Section 2 of the federal Voting Rights Act, according to LaBrant. Amici also state the standard is based on the flawed assumption that the Constitution somehow requires proportional representation of political parties in the Legislature based on statewide vote totals.
Amici maintain the panel’s decision will produce unprecedented federal intervention in the various states’ redistricting processes. Finally, Amici state that party affiliation is not an immutable characteristic. The panel failed to recognize that voters can — and often do — move from one party to the other, as they did in Michigan in 2006 and 2008 for Democrats and in 2010 for Republicans.
On Monday (May 22), Wisconsin Attorney General Brad Schimel filed a motion with the Supreme Court seeking a stay of the three-judge panel’s order this past January that the Wisconsin Legislature must draw new legislative districts by Nov. 1 of this year.
If five justices vote to grant a stay, that could be a signal the lower court ruling on partisan gerrymandering will be reversed. A denial of the stay motion, on the other hand, could be an indicator that there are five votes to uphold the three-judge panel’s 2016 decision.
The Supreme Court will likely rule on this motion before the end of its current term next month. That’s about the same time the Court will announce whether it will hear an appeal of the three-judge panel decision in its 2017-18 term that begins Oct. 2.
This case is YUGE — stay tuned.