Saturday, December 5, 2015

SCOTUS hears oral arguments on the AZ redistricting maps Dec 8

What will the Court do about our maps? Here is a sample from an analysis appearing at verdict.justia.com (h/t Pat Heman).

If the Court does reach and really engage the merits (as I expect it will), the justices will confront a number of questions. First, they will have to decide whether the deviations in size between the Arizona districts are large enough to care about. The commission’s brief points out that the Supreme Court’s one-person, one-vote jurisprudence has never insisted that all districts be of identical size, only that they be reasonably close, and that differences in size aren’t the function of impermissible factors. In the Harris case, the largest districts and the smallest districts vary less than 10 percent in overall population size, a margin that could fit within the acceptable band the Supreme Court cases have recognized.

But the plaintiffs’ rejoinder is that the problem here is not simply that some voters enjoy more clout than others because they live in districts with fewer people; it is that this enhanced clout was intended by the commission for partisan reasons. The partisan motive, the plaintiffs allege, take this case outside the realm of normal cases that permit some deviation in district size.

I think the difficulty here for the plaintiffs is that all district-drawing likely is motivated, at least in some measure, by partisan considerations, and all districts are somewhat unequally sized—you simply can’t have districts that contain hundreds of thousands of voters be literally equally sized. So if the plaintiffs’ theory boils down to the notion that all unequally sized districts motivated by partisan enthusiasm are unconstitutional, then most all districts are going to be invalidated. Indeed, the Supreme Court in Vieth v. Jubelirer (in 2004) and Gaffney v. Cummings a generation earlier (1973) consciously declined to try to assess whether partisan motivations played too large a role in the creation of district lines precisely because partisan motivations were invariably present, and deciding how much is too much is not a task the Court can undertake without generating arbitrary results that undermine confidence in its role.

To the extent that plaintiffs here try to avoid the teachings of those cases by pointing out that those disputes didn’t involve claims of unequally sized districts (and plaintiffs do say precisely that, conceding that "if the Commission had equally reapportioned Arizona voters into legislative districts for the partisan purpose of benefitting the Democrat party we would not be here"), the effort would seem unavailing, inasmuch as all districts are unequally sized to some extent, and we always need a threshold to decide how much population size inequality is too much to tolerate. And to the extent that plaintiffs are implicitly arguing that the threshold should be lower when a high level of partisan motivation may be at play, such an argument, if embraced, would pull the Court into precisely the arbitrary kind of line-drawing (no pun intended) that cases like Vieth vehemently resisted.

Would declaring the AZ maps void lead to the same decision about maps in other states? Would that open up a Pandora's box like Citizens United did for campaign finance? We know this court is capable of doing very dangerous things.

Fingers crossed.

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