Some Legal Developments in Voting

The Supreme Court in Rucho v. Common Cause (2019) made it official: partisan gerrymandering is a nonjusticiable political question. The ruling was 5-4 by ideological lines.

It was not like there was much teeth in Supreme Court precedent to stop partisan gerrymandering before this ruling. Justice Kennedy never firmly went either way. Four liberals for years, including before any of the current trio was on the Court, were open to the idea. Kennedy teased them by leaving it open, including as a First Amendment issue.  

The Supreme Court still guards against racial discrimination in voting, including while interpreting the Voting Rights Act. It denied an application to vacate a stay regarding a map in Texas. Kagan for the liberals (not the whole thing):

In imposing a different map, acknowledged to violate current law—on the theory that the Circuit might someday change that law—the Court of Appeals went far beyond its proper authority.

Chris Geidner argued that "far beyond" is strong language for Kagan, suggesting she wanted to firmly state her position. The whole dissent is a paragraph long. You can sometimes state your position succinctly.

The Supreme Court majority left open state and federal methods to regulate partisan gerrymandering. It remains to be seen if the conservatives limit the scope significantly in the future. For instance, how about independent districting commissions, which are not merely advisory? That is, they significantly tie the hands of the legislature. Chief Justice Roberts once opposed that. Rucho appears to now support it. Remains to be seen. 

On that front, the New York Court of Appeals handed down a significant opinion sending the districting back to a commission set up by a state constitutional amendment. The 4-3 opinion, by the new Chief Judge with the other new member recused (her stand-in joined the four), held the court-drawn map (after the old map was struck down) was temporary. 

A 4-3 opinion (the old chief judge joined that majority; the other three in the majority dissented here) held the old map was a partisan gerrymander that violated the state constitution. A court-drawn map helped Republicans win in 2022, including causing Democrats to run against each other. 

Steve Vladeck is one liberal who supported the idea that there was a partisan gerrymander. Some liberals were pissed that the court helped the Republicans without really disagreeing that it was a partisan gerrymander. They wanted the judges to say "Oh well, can't unilateral disarm."  

Tricky business. OTOH, how to apply the opinion there was still debatable. Why not say there was not enough time to fix the districts for the 2022 elections? A later ruling applied to the state legislature went that way. Anyway, this seems sensible. The constitutional amendment set up a system with a commission with some role for the legislature. 

The judge-drawn map was a special case. To be continued. 

ETA: Here is more discussion of the background of the opinion, including the importance of Senate Democrats rejecting Gov. Hochul's first choice for Chief Judge. 

Petitioner’s motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondent is directed to file a response to the petition on or before 4 p.m. (EST) on Wednesday, December 20, 2023.

The final thing that happened since my Monday SCOTUS wrap-up (told you there would be more orders) is also election-related. 

Jack Smith asked the Supreme Court to decide if Trump has immunity (no reason in hell he does) before the Court of Appeals addresses the issue. This is an election matter since his crimes involve screwing over an election and still being around to do it a third time. 

(See the Mueller Report for 2016.) 

This appears partially to be a time issue since the D.C. Court of Appeals is a good risk to decide in support of Smith. I am somewhat wary about the Supreme Court touching this issue. Again, there should be no reason Trump is immune in any fashion. But, the Supreme Court slow-walked the Trump financials last time and added more rules. 

The Supreme Court has agreed to speed things along regarding consideration of the petition. The usual process could be months long. So, it's a first step. If accept the case, they can have an argument in January. 

==

There are other pending matters. Again, there likely will be more orders. I wanted to address these since we already have some significant action.

ETA: There was. I will wait until the end of the week to comment.