Justice Alito drew lines
February 5, 2018, 11:11 pm by Sam Wang
Today, US Supreme Court Judge Samuel Alito rejected Republican lawmakers’ request to uphold the Pennsylvania Supreme Court’s redistribution decision. That decision overturned the state party leader, and remains the same. Therefore, drawing of new maps will be carried out.
Here’s a quick rundown of what the yes – and no – decision means.
1. Justice Alito never changed his heart. As all electoral law enthusiasts are aware, Justice Alito really doesn’t want to find the right to discriminate fairly in the US Constitution. Some of that is logically motivated: most proposed standards have a certain intellectual sensitivity to them. In addition, he seems to consider it legal for the legislature to maintain its power through redistricting. So why did he refuse to stay?
Basically, the logic states that he does so. The Pennsylvania court’s decisions are based on the Pennsylvania Constitution, which contains the same guarantees as the federal constitution of freedom of expression (US Attorney 1) and equal protection (US Attorney 14). Unless a state court ruling explicitly violates the federal constitution, there is no logical path to overturn it. And there are very few votes on the Supreme Court that argue that the US constitution guarantees the rights of the gerrymander. Definitely not five votes, but will be required for a stay.
2. Democrats are likely to win at least four seats in Pennsylvania this November. A partisan gerrymander typically steals 20-25% of the seats compared to neutral discriminators. Republican lawmakers have been trying to waste their own time with their request to stay, so they may not be able to draft a plan in time. That would suggest that the special master of the Supreme Court of Pennsylvania, Stanford’s professor of electoral law, Nathaniel Persily, would end up drawing lines. A neutral plan would move at least three to four counties toward the Democrats – and in years that could be a turbulent year, maybe even more will be overturned.
3. Wisconsin, Maryland and North Carolina are still in the air. Because the federal cases turn out to be different, still unresolved constitutional questions are Wisconsin (Gill v. Whitford), Maryland (Benisek v. Lamone), and North Carolina (General Cause Rucho). Decisions are likely to happen earlier than May. The reason is that the oral debates in Benisek are set for March. Because Benisek’s parties have submitted summaries, including them in a prior Gill decision will be considered a dirty pool. So we wait.
The most likely outcome at this point is that two partisan members will be toppled, one Republican in Wisconsin and one Democrat in Maryland. Because nearly all party members in the US are Republican committed, leveling the playing field produces net returns for Democrats relative to the status quo. However, many of these maps are unlikely to be redrawn until after the November election. Voters will receive justice… but not immediately.