Symposium

Census symposium: A place for pretext in administrative law?

June 29, 2019 by admin Leave a Comment

Jennifer Nou is Professor of Law and Ronald H. Coase Teaching Scholar at University of Chicago Law School.

With Department of Commerce v. New York, the Trump administration continues its losing streak in court under the Administrative Procedure Act. Many have ascribed this poor record to some combination of incompetence, vacancies, and a greater interest in tweeting policies, rather than implementing them. In this case, the government lost because it invoked a rationale that was simply implausible: It needed to add a census-citizenship question to enforce the Voting Rights Act. But the record was painfully clear that Secretary of Commerce Wilbur Ross had clumsily manufactured this story — cajoling the Department of Justice to make the request. The Supreme Court thus affirmed the district court and remanded the case back to the agency.

Chief Justice John Roberts, for a fractured court, upheld the plaintiffs’ standing, the suit’s reviewability, and Ross’ constitutional and statutory authority to include the citizenship question. But when it came to APA arbitrariness review, Roberts was Solomonic. On the one hand, he agreed with the conservatives that the agency had not been arbitrary under the traditional standards: The secretary “considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision.” On the other hand, Roberts sided with the liberals in concluding that, nevertheless, the agency’s action was ultimately arbitrary because its “sole” voting-rights-related reason was pretextual.

But is there a proper role for pretext in administrative law? It would be easy to interpret the Supreme Court’s answer as a firm no. Agencies, in this view, must reveal their genuine motivations to survive judicial review. This case hardly stands for the proposition, however, that bureaucratic honesty is the best policy. Agencies can still give reasons that obfuscate the political machinations behind them. In Roberts’ words, “a court may not set aside an agency’s policymaking decision” only because it was informed by unstated “political considerations or prompted by an Administration’s priorities.” To the contrary, he continues, “typical” agency decisions can and do rest on both “stated and unstated” reasons.

Indeed, as Katherine Watts notes, agencies under arbitrariness review have long had an incentive “to dress up” their explanations “in technocratic terms and to hide political influences.” In other words, agencies often provide expertise-based rationales, even when their genuine motivations are political. More recently, Thomas McGarity and Wendy Wagner document the ways in which appointees imperceptibly skew scientific work to justify deregulatory ends. Similar accounts abound of cost-benefit analyses written to support preferred outcomes. However pervasive these phenomena, these practices are arguably forms of pretext — rationales masking the genuine motivations for decisions.

The perception of charade only persists when agencies reimpose the same policies after remand, which the Department of Commerce seems likely to attempt here. One study, for example, found that agencies in its sample were able to pursue the same policy in about 80 percent of the rulemakings sent back after arbitrariness determinations. In other words, agencies simply carried on with their decisions after better dotting their i’s and crossing their t’s.

Why has the law allowed, perhaps even encouraged, this state of affairs? The likely answer has something to with the administrative state’s well-known struggle to reconcile politics and expertise. Perhaps a bit of pretext allows agencies to maintain public legitimacy at a time when political accountability is more suspect (think low voter information or partisan gerrymandering). Or perhaps a little required pretext ultimately helps agencies make better decisions, at least some of the time.

Whatever the explanation, administrative law has and will likely continue to tolerate some forms of pretext. A potentially new principle introduced in this case, however, is the idea that such pretext must at least be plausible. How else to give legal content to the idea that courts are “not required to exhibit a naiveté from which ordinary citizens are free?” In other words, Roberts — quoting Judge Henry Friendly — refuses to accept a wholly implausible rationale, one that is not credible. On this view, the kinds of pretext that agencies normally provide to meet the expertise-driven demands of arbitrariness review are fine because they are plausible; there is generally enough in the administrative record to justify them. By contrast, when the available evidence suggests that the only stated rationale is implausible, not credible, then agencies run afoul of the APA.

To be sure, the concept of plausibility itself is ill-defined, but it is not foreign to the law. Civil pleadings, for example, must state “plausible” claims, which the Supreme Court distinguishes from those that are merely “conceivable.” This is not to suggest that another body of law be imported here, but rather to search for some analogous concept in an effort to distinguish between proper and improper administrative pretext. As applied here, the pretext provided by the Department of Commerce was conceivable, but it was not plausible: There was just too much evidence that DOJ did not sincerely seek citizenship data. The secretary was trying to pull a fast one. Roberts makes clear that Ross would have been justified in adding the citizenship question had the trial proceedings suggested otherwise.

Of course, this now raises the related question of whether those trial proceedings were appropriate: What evidence can a reviewing court properly consider? The APA provides that courts must engage in arbitrariness review based on the “whole record,” the administrative record. Different agencies have varying conceptions of what should go into that record. In Citizens to Preserve Overton Park v. Volpe, however, the Supreme Court recognized that agency-furnished records can be insufficient for judicial review. There, the Department of Transportation allowed a highway to be built through a park without generating any contemporaneous record at all. The court thus remanded to the district court to figure out what to do. In passing, the Overton Park court noted that a “strong showing of bad faith or improper behavior” could justify extra-record testimony by agency officials.

Based on that language, in the case at hand, Roberts rightly endorsed the district court’s decision to allow for additional discovery from the Commerce Department. The government’s constant need to supplement and clarify the record demonstrated its bad faith in constructing the record in the first place. But, going forward, just how much of a showing of bad faith would be necessary for courts to look beyond the initial record? A whiff, a “reasonable” amount, more? Both Roberts and Justice Clarence Thomas in partial dissent are unclear on this question.

There is a good argument, however, that Thomas was right to emphasize that whatever the standard is, it should be high. As he writes: “Virtually every significant agency action is vulnerable to the kinds of allegations the Court credits today.” The majority thus “enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction.” The more discovery is allowed, in turn, the more litigants will be able to sift through depositions in search of any evidence of pretext. Such fears justify the general presumption of regularity, the normal rule against probing the mental states of busy executive-branch actors.

In the final analysis, Department of Commerce v. New York contains several ideas in danger of being read too broadly. One is to demand full administrative candor. Another is to allow discovery at the slightest trace of subterfuge. As Roberts concedes, such approvals should be “rare.” Allowing litigants to pounce at any hint of substantive or procedural bad faith threatens ossification and delay. Lower courts should therefore cabin this precedent’s principles, either to the case’s extraordinary facts or to its narrow context. As proposed elsewhere, perhaps this form of harder-look review should apply only in election-related decisions.

After all, some forms of pretext already have a place in administrative law. The pressing questions now are what kinds of pretext are tolerable, which are not, and why. The answers may determine whether the citizenship question ultimately appears on the 2020 census. This court may very well accept any plausible pretext from the Trump administration if called upon to review this case again. Only time — and the census printing deadlines — will tell.

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Census symposium: The unanswered census question

June 29, 2019 by admin Leave a Comment

Kaylan Phillips serves as litigation counsel for the Public Interest Legal Foundation, a 501(c)(3) public-interest law firm dedicated to election integrity. The foundation filed cert-stage and merits-stage amicus briefs in support of the government in Department of Commerce v. New York.

“Are you a citizen of the United States?” It is a simple question that if asked on the 2020 decennial census would provide critical data not available elsewhere that would enhance the enforcement of civil-rights laws. The Supreme Court’s decision regarding the reinstatement of this question on the 2020 census, arguably the most anticipated decision of the term, left more questions than answers. The eight-word question resulted in 92 pages of opinions including three partial dissents. Court-watchers are left wondering what will happen next.

A first read of Chief Justice John Roberts’ opinion for the court sounds like a slam-dunk win for the government. As to the constitutional claims, the court acknowledged that the Constitution allows the census to be used “for more than simply counting the population” and held that it is constitutional “to inquire about citizenship on the census questionnaire.” One point for the government.

As to the claims under the Administrative Procedure Act, the court held that “[t]he evidence before the Secretary supported [his] decision.” The court explained how the secretary, faced with several options with unknown variables, “opted instead for the approach that would yield a more complete set of data at an acceptable rate of accuracy, and would require estimating the citizenship of fewer people.” In short, the decision to reinstatement the citizenship question is justifiable and reasonable. Two points for the government.

As to the lower court’s finding that the secretary violated the Census Act, the court disagreed. The court determined that the secretary had fulfilled his responsibilities under the Census Act and, even if there was some technical violation, “the error would surely be harmless in these circumstances.” Three points for the government.

Further, the court found that, although the secretary desired to reinstate the citizenship question early on in his tenure, “[i]t is hardly improper for an agency head to come into office with policy preferences and ideas.” Four points for the government.

Toward the end of the opinion, the court discussed the Department of Justice’s request for the reinstatement of the citizenship question. “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.”

Pardon?

The court concluded that “here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.” In short, the court concluded that the secretary could reinstate the citizenship question and had good reason to reinstate the citizenship question, but the explanation he provided for why he did so was lacking, and that, in itself, is a fatal flaw worthy of sending the issue back to the Department of Commerce. Game over? Maybe not.

This is hardly the total victory the challengers sought. The challengers spent precious briefing space on why the secretary’s decision violated the Census Act and the enumeration clause of the Constitution. Indeed, Justice Stephen Breyer filed a separate opinion, agreeing with the court in part and disagreeing in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined. Breyer explained how he believes “the Secretary’s decision—whether pretextual or not—was arbitrary, capricious, and an abuse of his lawfully delegated discretion.” In other words, to those four justices, the court did not go far enough.

On the other hand, Justice Clarence Thomas, writing in a separate opinion concurring in part and dissenting in part, in which Justices Neil Gorsuch and Brett Kavanaugh joined, stated that the court had gone too far. “Unable to identify any legal problem with the Secretary’s reasoning,” Thomas explained, “the Court imputes one by concluding that he must not be telling the truth.” Justice Samuel Alito, concurring in part and dissenting in part, went further and found that the court should not have undertaken a review of the secretary’s decision under the Administrative Procedure Act at all. “Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country.”

Not only is there disagreement among the justices regarding the court’s analysis, there is disagreement among commentators about the effect of the decision. There is a genuine question about whether the Commerce Department can satisfy the court’s concerns in time for the 2020 census and, if so, how. The Supreme Court said the district court’s remand was “warranted” but the district court found that “[t]he problem with Secretary Ross’s decision was not that it was inadequately explained, but rather that it was substantively arbitrary and capricious and ‘not in accordance’ with statutes that constrain his discretion.” Such a finding is at odds with the holding of the Supreme Court limiting the problem to the explanation given by the secretary.

Adding to the complication is that the Supreme Court decision only involved the challenges that were brought in the U.S. District Court for the Southern District of New York. There are separate challenges to the reinstatement of the citizenship question pending in the U.S. Courts of Appeals for the 9th and 4th Circuits, and in the U.S. District Court for the District of Maryland. Despite the New York court’s decision blocking the reinstatement of the question in mid-January and the Supreme Court’s agreement to hear the case this term, the other lower courts proceeded with their own fact-finding and ruled against the government.

The Supreme Court’s decision also followed a dizzying few weeks in an ordinarily quiet time for a Supreme Court case. In the weeks following the oral argument, which many commentators believed signaled a win for the government, the challengers engaged in guerilla warfare with a willing media regarding supposedly “bombshell” new evidence. The origins of the evidence rival any soap opera’s plot. Commentators questioned whether the challengers’ actions were intended to influence the justices or, at the least, cast a pall of illegitimacy over any decision that did not go the challengers’ way. Interestingly, none of the “new evidence” made its way into any of the opinions. There is no way to know the extent of the impact it had on the Supreme Court. The “new” evidence did result in the 4th Circuit’s remanding the cases before it to the District of Maryland for additional fact-finding just this week.

All for one simple question that the Supreme Court agrees is reasonable to ask.

Dale Ho, who argued the case for the organizational challengers, tweeted of the Supreme Court’s decision: “We did it.” If by “it” he means “complicate an uncomplicated issue with rhetoric and fear-mongering,” then, yes, they did it.

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Gerrymandering symposium: The racial implications of yesterday’s partisan gerrymandering decision

June 29, 2019 by admin Leave a Comment

Kristen Clarke is the president and executive director and Jon Greenbaum is the chief counsel of the Lawyers’ Committee for Civil Rights Under Law. The Lawyers’ Committee submitted an amicus brief in Rucho v. Common Cause and Lamone v. Benisek.

After decades of punting on the issue of partisan gerrymandering, a 5-4 majority of Supreme Court held yesterday in Rucho v. Common Cause and Lamone v. Benisek that partisan-gerrymandering claims under the First and 14th Amendments of the Constitution are not justiciable. This case will have significant implications on redistricting in numerous respects. Given our organization’s historic role in redistricting efforts, we are particularly concerned about how yesterday’s decision will affect race claims in redistricting cases.

To be clear, yesterday’s decision does not affect the existing jurisprudence on the consideration of race in redistricting that has been developed in redistricting cases alleging intentional discrimination, racial gerrymandering and violations of Section 2 of the Voting Rights Act. Indeed, the majority opinion differentiates partisan gerrymandering from racial discrimination in voting. The opinion cites to two types of examples of racial discrimination in voting and distinguishes each from partisan gerrymandering. The first is Gomillion v. Lightfoot, in which the Supreme Court held that the intentional exclusion of black residents from the city of Tuskegee’s boundaries violated the Constitution. The second are the “Shaw” cases, in which the court has held that when racial considerations predominate over traditional districting principles (such as not splitting voting precincts) in a redistricting plan without a compelling reason, it violates the 14th Amendment.

Nonetheless, this decision will have a negative effect for civil-rights lawyers and advocates who seek to ensure fair maps. In many instances, it will enable map-drawers who have racial motivations or a combination of racial motivations and partisan motivations to claim that they made decisions only for partisan reasons and not for racial ones. The reality is that in many areas of the country, partisanship and race are closely intertwined. This is particularly true in the South, where in numerous places many African-Americans vote Democratic and a substantial majority of whites vote Republican. Sophisticated map-drawers not only know this but also can perform sophisticated statistical analyses whereby they can predict election outcomes based on the racial demographics of the district. Thus, race can be used as a means for achieving a partisan outcome. Though this is intentionally discriminatory behavior, courts may be loath to find racial discrimination when legislators disclaim any racial motivation and instead testify that their only motivations are partisan.

This concern proved to be warranted in a recent case litigated by the Lawyers’ Committee for Civil Rights Under Law, Georgia State Conference of the NAACP v. Georgia. In this case, the General Assembly, which happened to be Republican-led, conducted a mid-decade redistricting for its State House of Representatives that in part was designed to protect the seats of two white incumbents in Districts 105 and 111 who barely survived in 2014 and whose districts are located in areas of suburban Atlanta where white population is decreasing and minority population is increasing. The plan-drawers modified the districts slightly to reduce the black population and slightly increase the white population so that these incumbents could be re-elected without putting other white Republican incumbents at risk. The strategy worked in 2016, as both incumbents won by razor-thin margins against black candidates.

The Lawyers’ Committee and its partners brought suit in 2017. We claimed, among other things, that the mid-decade redistricting was both a racial gerrymander and a partisan gerrymander. The three-judge district court dismissed our partisan-gerrymander claim early in the case because it found that we did not allege a judicially manageable method for measuring the discriminatory effect of partisan gerrymandering. The dismissal of the partisan-gerrymandering claim enabled state witnesses to claim that their motivations were partisan and not racial.

When we moved for a preliminary injunction, the majority opinion of the three-judge court found that “[t]he plaintiffs’ evidence that race predominated this redistricting process is compelling.” This compelling evidence included documentation that the reason for redistricting Districts 105 and 111 was because of changing demographics, proof that racial data needed to be employed in deciding where to split precincts because the state had racial data but not partisan data at the sub-precinct level, and the “extreme racial polarization” of voting in the two districts. The court also found that the results in 2016 would have been different but for the redistricting. So we had intent, effect and causation.

Nonetheless, the district court ruled against us because the state witnesses all claimed they were motivated by partisanship and not race. The court found that racial gerrymandering claims are hard to prove when the defendants claim a partisan motivation: “[Proving racial gerrymandering] is particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats. And under current Supreme Court precedent, the State tells us this motive is perfectly acceptable.” Conversely, the court stated that “[t]his would be a more obvious case if it were a challenge to partisan gerrymandering.”

In the end, the court upheld a plan that left it with a bad taste in its mouth: “[F]air and effective representation is decidedly not what the voters removed from House Districts 105 and 111 got. Even so, our application of Supreme Court precedent to the record before us leaves us to conclude that plaintiffs are not entitled to the preliminary injunction they seek.” The continued demographic changes in Districts 105 and 111 resulted in two African-American Democrats winning in 2018 and led us to drop our case. So our clients achieved a more fair and just outcome in the end, but only because the demographics continued to change, offsetting the impacts of the state’s mid-decade redistricting scheme.

In the upcoming redistricting cycle, many African-American, Latino and other minority voters may not be so fortunate. The Supreme Court’s Rucho decision may lead legislators to believe that they can get away with racial gerrymandering in places where race and party are highly correlated, by defending these claims on the basis that their decisions were made for partisan, not racial, reasons. Although the Rucho decision did not give an express imprimatur to such connivance, history has shown that those intent on discrimination will use any means available to achieve their goals. Particularly in states where redistricting commissions and statutory or judicial solutions to partisan gerrymandering are not realistic, voters will be challenged to find recourse.

Of course, the Lawyers’ Committee for Civil Rights Under Law and fellow advocates for voting rights will continue to fight for racially fair redistricting plans during the process and challenge discriminatory plans where we are able. But the Supreme Court’s decision yesterday has made our job substantially tougher. Empowering communities to engage in redistricting at the ground level will be critical to help ensure some modest level of checks and balances in the upcoming decennial redistricting cycle.

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Gerrymandering symposium: Supreme Court confirms that it will not save our maps, only voters can

June 29, 2019 by admin Leave a Comment

Thomas P. Wolf (@tomtmwolf) is Counsel with the Democracy Program at the Brennan Center for Justice at NYU School of Law, which filed an amicus brief in support of the challengers in Rucho v. Common Cause and Lamone v. Benisek.

The Supreme Court’s ruling in this term’s partisan-gerrymandering cases is a stunning abdication of the court’s responsibility to protect voters’ constitutional rights. The court will face widespread backlash for shutting down federal partisan-gerrymandering claims, and rightfully so: The court’s ruling in its joint opinion in Rucho v. Common Cause and Lamone v. Benisek is based on demonstrably false premises and will license even more extreme partisan abuses of our redistricting processes than we’ve already experienced. Ultimately, the reasoning underlying Rucho confirms the long-running wisdom that fully fair maps, if they arrive at all, will arrive through reform, not from sweeping litigation victories. Reform must now take center stage.

Two of the many ways in which the partisan-gerrymandering cases were wrongly decided can shed some valuable light on the relatively small role the Supreme Court was willing to play here, in even the best-case scenario. Let’s take them in turn.

First, Rucho asserts that the court could not recognize partisan-gerrymandering claims without unleashing a flood of cases that would overwhelm the justices’ docket—what Chief Justice John Roberts describes as an “intervention … unlimited in scope and duration” that “would recur over and over again.” This assumption was ill-founded, at best, requiring the court to ignore substantial demonstrations to the contrary.

This term’s cases presented the court with a significant, but relatively rare, problem: extreme partisan gerrymandering, where a political party uses the redistricting process to net and entrench an unbreakable legislative majority that it couldn’t command without unusual manipulations of the electoral map.

Targeting the kind of extreme gerrymandering at issue in this term’s cases didn’t carry the threat of judicial intervention into maps everywhere. Extreme gerrymandering was a problem this decade in only a handful of states at the congressional level, and less than a dozen at the state legislative level. Under these circumstances, any fear of a flood of new redistricting litigation wasn’t a viable reason—let alone an excuse—for the Supreme Court to do nothing. Instead, it should have been an inducement to the court to define the problem it was addressing clearly and rigorously vet the elements of a constitutional offense.

The law can handle this problem. For instance, the court could have ruled that a map is unconstitutional when the mapmakers (a) intended to maximize and lock in one party’s seats for a full decade, (b) actually succeeded in doing so, and (c) could offer no neutral explanation for the degree of partisan advantage observed in the map. There is nothing mysterious or unorthodox in the basic structure of that standard. Legal tests based on bad intent, bad effect, and some kind of neutral justification or burden-shifting are a staple of, among other things, 14th Amendment law. And plaintiffs can draw on robust qualitative and social-science evidence to substantiate violations of a standard like this by showing where maps have reached durable partisan extremes.

One need look no further than plaintiffs’ recent string of victories in trial courts for evidence of the workability of this approach. Countless lower courts have not only endorsed this kind of analysis—or something meaningfully close to it—but also demonstrated how judges could apply it easily and predictably. If the Supreme Court believed that this clear and narrow standard was still somehow insufficient, it could have supplemented it with additional criteria that are closely correlated with extreme gerrymanders, chief among them single-party control of the redistricting process.

The limited solution sketched out here would have been able to eliminate the worst maps, primarily by establishing the outer bounds of constitutional behavior. Within these bounds, states would still have had substantial freedom to shape their maps, including the freedom to engage in all the legitimate policy balancing that is inherent to redistricting.

None of this was a mystery to the court. It was detailed not only in the multiple, extensive lower court opinions from around the country, but also in countless party briefs and amicus briefs from the past two terms. The court really did have one or more workable standards before it, and nonetheless chose to walk away.

Second, Roberts’ majority opinion also implicitly assumes that costs of the court’s walking away will be far lower than the costs of getting involved. Under this assumption—which the chief justice surfaced at last term’s arguments in the Wisconsin partisan gerrymandering case—nonintervention is costless, while intervention could be nothing but costly. If this calculus were ever true, it is no longer. The court could have intervened here in a low-cost way by targeting extreme gerrymanders, as we’ve seen. Meanwhile, the costs of not doing so will be staggering—and were entirely foreseeable by the majority.

The Supreme Court has now given a glowing green light to would-be gerrymanderers to push their partisan advantage as far as they can in the next round of redistricting. The result could very well be extreme partisan gerrymanders in any state where one party controls the entire mapping process.

The court’s ruling likewise voices tacit assent to recent attacks on the deep-seated American norms against entrenching political power. Extreme partisan gerrymanders in states like North Carolina represent one of many tools that dominant political parties have deployed to cement their power, along with jurisdiction-stripping bills, judicial impeachment pushes and the like. As extreme gerrymandering’s role in melting down the separation of powers suggests, voters will not be the only losers from the court’s ruling—state courts and governors might suffer, too.

The federal courts will lose as well. Rucho cedes substantial power to state legislatures around the country, with the court unilaterally stripping the federal courts of the power to police legislative power grabs that threaten constitutional values. Moreover, this week’s ruling—indefensible as it is—will erode the court’s reputation with the public, which has overwhelmingly supported the justices placing limits on gerrymandering.

Despite all these clearly foreseeable problems with staying its hand, the court seems to have concluded—however wrongly—that its legitimacy was better served by walking away.

The court’s problematic reasoning is a strong reminder that—in even the best-possible scenario—the justices were likely to give only a small assist to the cause of fair maps. A court this committed to blinkered perspectives on managing its docket and preserving its legitimacy was never going to grant a sweeping ruling that remade American redistricting from top to bottom. At most, we could have expected a ruling limited to the most extreme abuses of the redistricting process. It always would have been voters’ responsibility to pursue more comprehensive reforms through other avenues. In other words, the premium on reform was always high.

That premium has now just gotten higher.

With the Supreme Court off the table, energy to reform redistricting should be focused on voter- or legislator-led efforts to remake the rules of the process. Properly designed independent redistricting commissions would mark a substantial step forward. Commissions are not the end-all and be-all, however. Reforms to mapmaking criteria—making them clearer, using them to elevate important values like compromise and racial equity, and rank-ordering them in terms of importance—could also produce meaningful change. Promoting transparency and public participation would produce significant dividends, too.

Recent successes with voter-led reforms in Colorado, Michigan, Missouri, Ohio and Utah have demonstrated voters’ ability to band together to achieve change. Attention now shifts to Arkansas and Oregon, among others, which could represent the next wave for the voter-led reform movement.

Legislator-led reform is also a possibility. In the absence of Supreme Court rules barring extreme partisan gerrymandering, any party with a tenuous hold on power faces a threat of being redistricted into irrelevance in 2021. Federal and state legislators need only look at what has happened and what will come to find the motivation to reach compromises now. Legislators in states like Pennsylvania, New Hampshire, New Jersey, New Mexico and Virginia are working now to avoid the worst-case scenario. Other states should follow suit.

Congress can, and should, join the effort. Significant redistricting reform bills are already circulating on Capitol Hill, including H.R. 1—which the House passed in March—and the Fair Maps Act of 2019. H.R. 1 would help combat extreme partisan gerrymandering by ensuring that states draw congressional districts using independent redistricting commissions staffed with diverse members, by establishing clear and fair redistricting criteria, and by mandating greater transparency in redistricting. The Fair Maps Act—introduced by Senator Michael Bennet (D.-Colo.)—would not only establish ranked, baseline criteria to guide the redistricting process, but also provide a private cause of action that would allow voters to take bad maps to court.

The Supreme Court made clear this week that it will not save our maps. But it never would. The health of our democratic processes has, would, and will always ultimately hinge on voters taking an active role in sustaining it. The court has done us no favors with its ruling, except to hammer home our basic responsibility to perfect our system.

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Gerrymandering symposium: Time to find someone else to solve partisan gerrymandering

June 29, 2019 by admin Leave a Comment

Andrew Pinson is the Solicitor General of Georgia. Georgia joined nine other states in filing an amicus brief in support of the appellants in Rucho v. Common Cause.

In the coming days, commentators will describe the Supreme Court’s decision in Rucho v. Common Cause and Lamone v. Benisek as one that will let “politicians pick their voters.” But that assigns the decision far too much blame. Politicians have been “picking their voters” with varying degrees of success since the dawn of our republic. The court only decided that you can’t make a federal case out of it. Far from blessing partisan gerrymandering, the court merely made clear—finally—that it’s a problem someone other than federal courts will have to solve.

The first question a federal court has to answer when parties come before it is whether the court has the power to hear their dispute. That power comes from Article III of the Constitution, which gives federal courts just one job: decide the “Cases” and “Controversies” that reach them. That language has long been understood as not just a grant of power to federal courts, but also a limitation, permitting them to address only those disputes “historically viewed as capable of resolution through the judicial process.” If a dispute presents a case or controversy, the federal court’s obligation to decide it is virtually unflagging. But if not, the court has to let it go.

In Rucho and Benisek, the Supreme Court concluded in an opinion authored by Chief Justice John Roberts that the Constitution does not give federal courts the power to resolve partisan-gerrymandering claims. The court formally grounded this holding in the political-question doctrine, an aspect of Article III’s case-or-controversy requirement that precludes federal courts from deciding disputes that have been committed to the political branches, or that do not involve “judicially enforceable rights.” That doctrine is admittedly amorphous, but the court’s reasoning is straightforward: The Constitution nowhere provides federal courts with authority to resolve the question partisan-gerrymandering claims pose—that is, whether state legislatures’ districting maps are sufficiently “fair” to particular political parties.

This conclusion followed in part from what little the Constitution says about districting. The elections clause provides that state legislatures may prescribe the “Times, Places and Manner of holding Elections,” and Congress has the power to check them by making laws that override their choices. In the court’s words, “[t]he only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” This tells us at the least that the Constitution permits, even invites, political considerations in districting. And although the court rejected the argument that the elections clause removes federal courts from the districting arena altogether, without question it fails to carve out a role for courts or supply any limits on partisanship they can enforce.

Nor could the court discern judicially enforceable limits on partisan gerrymandering elsewhere in the Constitution. In the court’s view, partisan-gerrymandering claims bottom on intuitions about the unfairness of the practice that don’t square with any of the specific legal rights the Constitution’s text affords. The clearest example: Any description of partisan gerrymandering inevitably points out that the challenged map skews a party’s representation well past (and the other party’s well short of) its statewide numbers. (In Rucho, for instance, Republicans in North Carolina won 9 of 13 seats in 2012 with only 49 percent of the statewide vote.) But the court has long been clear that proportional representation—a political party being able to elect a percentage of representatives similar to its percentage of statewide support—is not something the Constitution requires. So no matter how parties package such claims (equal protection, free speech, freedom of association, etc.), none can stick, because their fundamental objection doesn’t describe any legal right the Constitution guarantees.

There is much more to the Supreme Court’s opinion, but in the end, the court was persuaded that, stripped of their trappings, partisan-gerrymandering claims really “ask courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.” That, the court held, is not something federal courts are equipped or authorized to do, which left it with no choice but to dismiss these cases for lack of jurisdiction.

That result is no doubt unsatisfying for those who had held out hope that the court’s decades of hand-wringing about partisan gerrymandering would ever translate into meaningful limits enforceable by federal courts. And the concerns that animated that hope are not unfounded. The very idea of our elected representatives manipulating districts to choose voters who will keep them in power is unseemly, and the court is unanimous in its view that gerrymandering is “incompatible with democratic principles.” The practice might have begun as a tolerated feature of our democratic system, but the advance of technology may have transformed it into a latent bug, capable of real damage to democracy. And many fear that yesterday’s decision leaves that danger unchecked, because surely the political branches who benefit from gerrymandering won’t soon put a stop to it.

But these policy concerns, however well founded, do not in and of themselves provide federal courts with the power to solve them. The Constitution gives federal courts a lot of power, but only in the context of deciding disputed claims of legal right for the parties before them. Federal courts do not have the discretion to swoop in whenever they see bad policy or general unfairness, however fundamental the issue. And it should go without saying that a declaration that “no one else is going to fix it” does not provide federal courts with the power to resolve a dispute, even if it’s true.

Anyway, it’s not so clear that this decision will usher in a new era of increasingly extreme gerrymanders. As the court took pains to explain in Rucho and Benisek, its conclusion that federal courts cannot resolve partisan-gerrymandering claims does not “condemn complaints about districting to echo into a void.” At the federal level, Congress has express constitutional power to override state legislatures with respect to the “Time, Places and Manner” of holding elections. Congress was once active in this area; perhaps with hopes of federal courts doing that job for them now dashed, it will be again. As for the states, many are trying out a variety of ways to push back against partisan districting through legislation and referenda. It’s not so hard to imagine this very decision galvanizing people to seek change. And of course, being cases about federal courts’ power, Rucho and Benisek have nothing to say about state courts or state constitutions and any role they may have in this field.

Like the court, I “express no view on” the merits of any of these ideas. Rather, I include them only to sharpen the point that the court’s decision in these cases is not about whether or to what extent partisan gerrymandering can continue. Instead, it’s about who has the power to make that decision. After decades of back-and-forth, and in a show of restraint that is increasingly rare for federal courts today, the Supreme Court finally answered, “not us.”

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Gerrymandering symposium: Janus-like judicial restraint in political gerrymanders and the census

June 29, 2019 by admin Leave a Comment

Ken Klukowski is Of Counsel at First Liberty Institute, Senior Legal Analyst for Breitbart News and Senior Fellow at the American Civil Rights Union.

Observers studying the partisan-gerrymander cases on the last day of the Supreme Court’s term would have at least two takeaways: First, this is the Roberts Court in every sense of the word. Second, the judicial restraint central to the political-gerrymander cases was nowhere to be found in the census case.

June 27 brought newsworthy drama at the nation’s highest court, with two of the biggest cases coming down in 5-4 split decisions. One was clearly a win for constitutional conservatives, the other a short-term win for the left, a long-term win for the right, and a remand that tosses the matter back to President Donald Trump to see if he can thread the needle of expedited court hearings coupled with a compressed printing schedule for 2020 census forms.

The win for originalists and textualists—to use the professional terms that describe the constitutional conservatives mostly found in the Republican Party base—came in the form of two partisan gerrymander cases that the court decided together in a single decision. The court held 5-4 that federal judges lack the tools to decide these cases. Chief Justice John Roberts wrote the majority opinion.

Interested observers should also have a third takeaway: Many legal commentators do not really understand the Supreme Court cases on which they are commenting. Many in the media are getting this case wrong, saying that the justices failed to decide it because they did not reach the merits of the lawsuit. Quite the contrary, it was a major constitutional decision on the limits of the power of federal courts, ending decades of punting on this recurring controversy.

The concept of political gerrymanders is built on the case law for racial gerrymanders. Racial-gerrymander cases refer to legislatures attempting to “pack” racial groups into certain districts or “crack” other districts to disadvantage those racial groups. Groups and individuals associated with the political left argue that partisan gerrymanders should likewise be unconstitutional.

Although much of the commentary this year has ignored it, Supreme Court precedent is clear that “a jurisdiction may engage in constitutional political gerrymandering” and that “political considerations are inseparable from districting and apportionment.” As a consequence, these cases task judges with “determining when political gerrymandering has gone too far.” A “partisan gerrymander” is thus a “hyper-political” gerrymandering exercise.

As Justice Anthony Kennedy wrote in a concurring opinion in Vieth v. Jubelirer, courts would need to articulate a “limited and precise rationale” and a rule that is “clear, manageable, and politically neutral” to decide partisan-gerrymander cases. But as Justice Antonin Scalia wrote for the plurality regarding the Supreme Court’s mandate from Marbury v. Madison to declare “what the law is” is, sometimes “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.”

Scalia’s opinion was based on the political-question doctrine articulated by the court in its landmark 1962 case, Baker v. Carr. Specifically, the prong from Baker’s six factors that one of the hallmarks of a nonjusticiable political question is legal challenges to facts when there are no “judicially discoverable and manageable standards” for resolution.

In Common Cause, Roberts elevated Scalia’s reasoning for a plurality of justices as the holding of the court, creating binding precedent going forward. The chief justice explained the dilemma for partisan gerrymanders as “whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.”

Roberts noted that from the Framing, the Constitution allowed for statewide at-large elections for Congress, and that single-member congressional districts were not mandated by federal law until 1842, when Congress exercised its authority under Article I’s elections clause.

The court rejected the argument that the judiciary never has a role in claims like the ones in Common Cause, noting that the 14th Amendment’s equal protection clause—adopted in 1868—authorizes judicial action on some types of claims, including racial gerrymanders. But with few exceptions, the Constitution assigns “the issue to the state legislatures, expressly checked and balanced by the Federal Congress.” The court observed, “At no point was there a suggestion that the federal courts had a role to play.”

To the contrary, Roberts quoted Justice Sandra Day O’Connor—a justice who had “extensive experience in state and local politics”—who wrote that the “opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the Unites States.” Given that these are among “the most heated partisan issues,” it is critically important for federal judges to apply rules of law that are clearly devoid of politics.

After exploring various theories and approaches, Roberts observed:

Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernable in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.

In other words, the court majority sees such cases as inviting unelected, politically unaccountable judges to babysit politicians, telling them not to be too political when engaged in the uber-political activity of deciding how much protection to afford their own seats for upcoming elections. There are no workable legal standards for nonpolitical judges to employ to resolve such purely political struggles.

Contrast this entire paradigm of judicial restraint in Common Cause with the philosophy underlying Department of Commerce. In that case challenging asking census respondents if they are U.S. citizens, Roberts acknowledged that constitutional and statutory requirements appear to be satisfied, but was the fifth vote to remand the case to explore whether the government’s explanation for asking about citizenship was mere pretext to mask some tainted political motive.

There, Justice Samuel Alito noted in his dissent the Administrative Procedure Act’s exemption from judicial review of matters “committed to agency discretion by law.” Section 141(a) of the Census Act says that the census shall be conducted each decade in “such form and content as [the Commerce Secretary] may determine, including the use of sampling procedures and special surveys.”

Even if the APA allows judicial review of the citizenship question, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, noted that APA requirements are not overly demanding to clear the bar that a decision not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Thomas noted that Commerce Secretary Wilbur Ross carried his burden of explaining a reasoned decision. These dissenting justices argued that the APA does not authorize federal courts to be more intrusive in their review. Therefore, courts should not entertain theories of additional political motives not disclosed to the courts, or claim authority to overturn agency actions if judges decide the facially valid explanation found in the administrative record is pretextual.

Both decisions—Common Cause and Department of Commerce—were authored by the same justice, on the same day, handed down merely minutes apart. There seems to be a tension between these two cases. Some critics may note that the citizenship case was very high-profile, comparable to (though less controversial than) the court’s 2012 Obamacare case, NFIB v. Sebelius. These critics are already saying that Department of Commerce reveals a pattern suggesting that if politicians, activists and the media make a legal case controversial enough, public pressure can influence the chief justice’s vote to change the outcome of a Supreme Court case.

Such cases will provide fodder for legal strategists and political strategists alike going forward. But regardless of the explanation for the seeming disparity between these cases, partisan gerrymanders will no longer be a contentious item on federal-court dockets going forward. Common Cause has rightly extracted the federal judiciary from political controversies that judges are not equipped to decide.

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